Child Nutrition Programs: Meal Patterns Consistent With the 2020-2025 Dietary Guidelines for Americans, 31962-32120 [2024-08098]
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Federal Register / Vol. 89, No. 81 / Thursday, April 25, 2024 / Rules and Regulations
DEPARTMENT OF AGRICULTURE
Food and Nutrition Service
7 CFR Parts 210, 215, 220, 225, and 226
[FNS–2022–0043]
RIN 0584–AE88
Child Nutrition Programs: Meal
Patterns Consistent With the 2020–
2025 Dietary Guidelines for Americans
Food and Nutrition Service
(FNS), Department of Agriculture
(USDA).
ACTION: Final rule.
AGENCY:
This rulemaking finalizes
long-term school nutrition requirements
based on the goals of the Dietary
Guidelines for Americans, 2020–2025,
robust stakeholder input, and lessons
learned from prior rulemakings.
Notably, this rulemaking gradually
phases in added sugars limits for the
school lunch and breakfast programs
and in the Child and Adult Care Food
Program, updates total sugars limits for
breakfast cereals and yogurt to added
sugars limits. As a reflection of feedback
from stakeholders, this final rule
implements a single sodium reduction
in the school lunch and breakfast
programs and commits to studying the
potential associations between sodium
reduction and student participation in
the school lunch and breakfast
programs. This rulemaking addresses a
variety of other school meal
requirements, including establishing
long-term milk and whole grain
requirements. Finally, this rule includes
provisions that strengthen Buy
American requirements. While this
rulemaking takes effect school year
2024–2025, the Department is gradually
phasing in required changes over time.
Program operators are not required to
make any changes to their menus as a
result of this rulemaking until school
year 2025–2026 at the earliest.
DATES: This final rule is effective July 1,
2024. Phased-in implementation dates
for required changes are addressed in
the SUPPLEMENTARY INFORMATION section
of this rule.
ADDRESSES: Docket: Go to the Federal
eRulemaking Portal at https://
www.regulations.gov for access to the
rulemaking docket, including any
background documents.
FOR FURTHER INFORMATION CONTACT:
Andrea Farmer, Director, School Meals
Policy Division—4th floor, Food and
Nutrition Service, 1320 Braddock Place,
Alexandria, VA 22314; telephone: 703–
305–2054.
SUPPLEMENTARY INFORMATION:
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SUMMARY:
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Table of Contents
Section 1: Background
1. Background
Phased-In Implementation
USDA Support for Child Nutrition
Programs
Federal Strategies To Reduce Sodium and
Added Sugars in the Food Supply
Overview of Public Comments
2. Added Sugars
3. Milk
3A: Flavored Milk
3B: Fluid Milk Substitutes: Responses to
Request for Input
3C: Fluid Milk Substitutes: Nutrient
Requirements
4. Whole Grains
5. Sodium
6. Meats/Meat Alternates at Breakfast
7. Substituting Vegetables for Grains in Tribal
Communities
8. Traditional Indigenous Foods
9. Afterschool Snacks
10. Substituting Vegetables for Fruits at
Breakfast
11. Nuts and Seeds
12. Beans, Peas, and Lentils at Lunch
13. Competitive Foods: Bean Dip Exemption
14. Meal Modifications
15. Clarification on Potable Water
Requirements
16. Synthetic Trans Fats
17. Professional Standards: Hiring Exception
for Medium and Large Local Educational
Agencies
18. Buy American
18A: Limited Exceptions to the Buy
American Requirement
18B: Exception Documentation and
Reporting Requirements
18C: Procurement Procedures
18D: Definition of ‘‘Substantially’’
18E: Clarification of Requirements for
Harvested Farmed and Wild Caught Fish
19. Geographic Preference
20. Miscellaneous Changes
21. Summary of Changes
21A: Descriptive Summary of Changes
21B: Table of Changes by Program
22. Procedural Matters
Regulatory Impact Analysis
On February 7, 2023, the U.S.
Department of Agriculture (USDA)
published Child Nutrition Programs:
Revisions to Meal Patterns Consistent
With the 2020 Dietary Guidelines for
Americans 1 (‘‘2023 proposed rule’’) to
update the school meal pattern
requirements based on a comprehensive
review of the Dietary Guidelines for
Americans, 2020–2025 (Dietary
Guidelines), robust stakeholder input on
the school meal patterns, and lessons
learned from prior rulemakings.2 USDA
is finalizing that proposed rule, with
some modifications based on public
input. This final rule is the next step in
an ongoing effort toward healthier
school meals that USDA and the broader
school meals community have been
partnering on for well over a decade.
Separately, on January 23, 2020,
USDA published a proposed rule,
Simplifying Meal Service and
Monitoring Requirements in the
National School Lunch and School
Breakfast Programs (‘‘the 2020 proposed
rule’’).3 As noted in the 2023 proposed
meal pattern rule, based on public
comment, USDA is finalizing certain
meal pattern provisions from the 2020
proposed rule in this final rule.4 The
following sections address rule
provisions that were included in the
2020 proposed rule:
• Section 6: Meats/Meat Alternates at
Breakfast
• Section 12: Beans, Peas, and Lentils at
Lunch
• Section 14: Meal Modifications
• Section 15: Clarification on Potable
Water Requirements
• Section 16: Synthetic Trans Fats
Through this rulemaking, USDA is
exercising broad discretion authorized
by Congress to administer the school
Table of Abbreviations
AFHK—Action for Healthy Kids
ADA—Americans with Disabilities Act
CACFP—Child and Adult Care Food Program
CNA—Child Nutrition Act
CN–OPS—Child Nutrition Operations Study
FAR—Federal Acquisitions Regulations
FDA—U.S. Food and Drug Administration
FNS—Food and Nutrition Service
HEI—Healthy Eating Index
HMI—Healthy Meals Incentives
ICN—Institute of Child Nutrition
NASEM—National Academies of Science,
Engineering, and Medicine
NSLA—National School Lunch Act
NSLP—National School Lunch Program
SBP—School Breakfast Program
SFSP—Summer Food Service Program
SNAP—Supplemental Nutrition Assistance
Program
SMP—Special Milk Program
SY—School Year
USDA—U.S. Department of Agriculture
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1 Child Nutrition Programs: Revisions to Meal
Patterns Consistent With the 2020 Dietary
Guidelines for Americans (88 FR 8050, February 7,
2023). Available at: https://www.federalregister.gov/
documents/2023/02/07/2023-02102/child-nutritionprograms-revisions-to-meal-patterns-consistentwith-the-2020-dietary-guidelines-for.
2 U.S. Department of Agriculture and U.S.
Department of Health and Human Services. 2020–
2025 Dietary Guidelines for Americans. 9th Edition.
December 2020. Available at: https://
www.dietaryguidelines.gov/.
3 Simplifying Meal Service and Monitoring
Requirements in the National School Lunch and
School Breakfast Programs (85 FR 4094, January 23,
2020). Available at: https://www.federalregister.gov/
documents/2020/01/23/2020-00926/simplifyingmeal-service-and-monitoring-requirements-in-thenational-school-lunch-and-school.
4 Other provisions of the 2020 proposed rule
related to program monitoring were finalized in
Child Nutrition Program Integrity (88 FR 57792,
August 23, 2023). Available at: https://
www.federalregister.gov/documents/2023/08/23/
2023-17992/child-nutrition-program-integrity.
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lunch and breakfast programs and
ensure meal patterns ‘‘are consistent
with the goals of the most recent’’
Dietary Guidelines.5 See 42 U.S.C. 1752,
1758(a)(1)(B), 1758(k)(1)(B),
1758(f)(1)(A), and 1758(a)(4)(B).
Consistent with its historical position,
USDA interprets ‘‘consistent with the
goals of’’ the Dietary Guidelines to be a
broad, deferential phrase that requires
consistency with the ultimate objectives
of Dietary Guidelines but not necessarily
the adoption of the specific
consumption requirements or specific
quantitative recommendations in the
Dietary Guidelines. Accordingly,
through this final rule, USDA is working
to ensure an appropriate degree of
consistency between school meal
patterns and the Dietary Guidelines by
considering operational feasibility and
the ongoing recovery from the impacts
of COVID–19, while also ensuring
schools can plan appealing meals that
encourage consumption and intake of
key nutrients that are essential for
children’s growth and development.
This rulemaking updates current meal
pattern requirements, which were most
recently updated in SY 2022–2023
through the final rule, Child Nutrition
Programs: Transitional Standards for
Milk, Whole Grains, and Sodium (‘‘the
transitional standards rule’’). USDA
intended for the transitional standards
rule to serve as a bridge, providing
immediate relief as schools returned to
traditional school meal service
following extended use of COVID–19
meal pattern flexibilities. A detailed
overview of the transitional standards
rule, USDA’s stakeholder engagement
campaign, and other factors considered
in the proposed rule development can
be found in the 2023 proposed rule
preamble.6 With this rule, USDA
intends to further align school meal
nutrition requirements with the goals of
the Dietary Guidelines, 2020–2025. This
effort is described in greater detail, as
informed by public comments on the
5 The Dietary Guidelines, 2020–2025 provide four
overarching recommendations: (1) Follow a healthy
dietary pattern at every life stage. (2) Customize and
enjoy nutrient-dense food and beverage choices to
reflect personal preferences, cultural traditions, and
budgetary considerations. (3) Focus on meeting
food group needs with nutrient-dense foods and
beverages and stay within calorie limits. (4) Limit
foods and beverages higher in added sugars,
saturated fat, and sodium, and limit alcoholic
beverages.
6 Child Nutrition Programs: Revisions to Meal
Patterns Consistent With the 2020 Dietary
Guidelines for Americans (88 FR 8050, February 7,
2023). Available at: https://www.federalregister.gov/
documents/2023/02/07/2023-02102/child-nutritionprograms-revisions-to-meal-patterns-consistentwith-the-2020-dietary-guidelines-for.
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proposed rule, throughout this
preamble.
Phased-In Implementation
For most children, school meals are
the healthiest meals they consume in a
day,7 and USDA research has found that
school meals contribute positively to the
diet quality of all participating
students.8 However, there is still room
for improvement. For example, the
Dietary Guidelines for Americans, 2020–
2025 indicates that about 70 to 80
percent of school children exceed the
recommended daily limit of added
sugars.9 Research suggests that among
adolescents, certain poor dietary
behaviors—such as skipping breakfast
and infrequent consumption of fruits
and vegetables—worsened during the
COVID–19 pandemic.10 Updating the
school meal patterns is one strategy to
increase healthy dietary behaviors
among school children for the long
term. Many children rely on school
meals for more than half of their food
each school day, so even small
nutritional improvements can make a
difference.11
At the same time, USDA understands
that changes to the meal patterns need
to be gradual and predictable to give
child nutrition program operators and
7 Liu J, Micha R, Li Y, Mozaffarian D. Trends in
Food Sources and Diet Quality Among US Children
and Adults, 2003–2018. JAMA. April 12, 2021.
Available at: https://jamanetwork.com/journals/
jamanetworkopen/fullarticle/2778453?utm_
source=For_The_Media&utm_
medium=referral&utm_campaign=ftm_links&utm_
term=040921.
8 ‘‘While USDA school meals were bigger
contributors to the caloric intakes of students from
less food-secure households, they contributed
positively to the diet quality of all participating
students . . . For both food-insecure and foodsecure students, the average HEI scores for nonschool foods were between 55 and 57, whereas
school foods scored between 79 and 81. School
foods were particularly noteworthy as sources of
fruit, dairy, and whole grains.’’ U.S. Department of
Agriculture. USDA School Meals Support Food
Security and Good Nutrition. May 3, 2021.
Available at: https://www.ers.usda.gov/amberwaves/2021/may/usda-school-meals-support-foodsecurity-and-good-nutrition/.
9 See ‘‘Percent Exceeding Limits of Added Sugars,
Saturated Fat, and Sodium’’ on pages 79, 82, and
85. U.S. Department of Agriculture and U.S.
Department of Health and Human Services. 2020–
2025 Dietary Guidelines for Americans. 9th Edition.
December 2020. Available at: https://
www.dietaryguidelines.gov/.
10 Michael SL, Jones SE, Merlo CL, et al. Dietary
and Physical Activity Behaviors in 2021 and
Changes from 2019 to 2021 Among High School
Students—Youth Risk Behavior Survey, United
States, 2021. MMWR Suppl 2023;72(Suppl-1):75–
83. DOI: https://dx.doi.org/10.15585/
mmwr.su7201a9.
11 Karen Weber Cullen, Tzu-An Chen, The
contribution of the USDA school breakfast and
lunch program meals to student daily dietary
intake, Preventive Medicine Reports. March 2017.
Available at: https://www.sciencedirect.com/
science/article/pii/S2211335516301516.
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children time to adapt, and to allow
industry time to develop new products.
This final rule responds to stakeholder
input by building in plenty of time for
State agencies, school nutrition
professionals, and other program
operators to successfully implement the
required changes. For example, as
discussed in Section 2: Added Sugars,
USDA is gradually phasing in the
product-based and weekly limits for
added sugars in the school meal
programs. As discussed in Section 5:
Sodium, this final rule gives schools and
manufacturers even more time to reduce
sodium compared to the proposed rule.
As recommended by numerous
stakeholders, it also commits to
examining sodium reduction in school
meals and assessing the potential
impact of these reductions on program
operations and student participation.
This rulemaking does not make changes
to the current whole grain requirements
for school meals and continues to allow
schools to offer flavored milk, subject to
new added sugars limits, to all K–12
students. Although USDA considered
alternatives for the whole grain and
flavored milk requirements, based on
stakeholder input, USDA determined
that maintaining the current
requirements would best position
schools and students for success.
Other changes in this rule simplify
program regulations and provide child
nutrition program operators more
flexibility to successfully plan and
prepare meals. These changes will be
implemented on a quicker timeline, as
they provide optional administrative or
operational flexibilities but do not
require operators to change menus or
operations. For example, this
rulemaking makes it easier for schools
to offer meats/meat alternates at
breakfast by removing the minimum
grains requirement. It removes the limit
for nut and seed crediting at breakfast,
lunch, and supper in the child nutrition
programs, making it easier for operators
to offer vegetarian meals. This
rulemaking also makes it easier for
program operators to purchase local
foods for the child nutrition programs
by allowing ‘‘locally grown, raised, or
caught’’ to be used as procurement
specifications for unprocessed or
minimally processed food items.
Each provision of this rule, along with
its implementation date, is discussed in
greater detail throughout this preamble.
A chart outlining each regulatory
change and its implementation date is
included in Section 21: Summary of
Changes.
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USDA Support for Child Nutrition
Programs
USDA is incredibly grateful for the
dedication of child nutrition program
operators who serve children healthy
meals with kindness and care. USDA
understands that some program
operators continue to face high food
costs and supply chain issues. The
Department is committed to continuing
to provide program operators with
support to help them succeed.
USDA is making a $100 million 12
investment in the Healthy Meals
Incentives (HMI) Initiative, which is
dedicated to improving the nutritional
quality of school meals through food
systems transformation, school food
authority recognition and technical
assistance, the generation and sharing of
innovative ideas and tested practices,
and grants. As part of a cooperative
agreement to develop and implement
USDA’s HMI Initiative, Action for
Healthy Kids (AFHK) has awarded
nearly $30 million in grants to 264 small
and/or rural school food authorities
across 44 States and the District of
Columbia. These school food authorities
will use funding to modernize their
operations and provide more nutritious
meals to students. Additionally, AFHK
is offering Recognition Awards to
celebrate and spotlight school food
authorities who use innovative
practices, student and community
engagement activities, and other
strategies to provide meals that are
consistent with the Dietary Guidelines
for Americans, 2020–2025.
USDA also provides support to
schools through its annual Patrick
Leahy Farm to School Grant Program.
These funds support a wide range of
farm to school activities designed to
improve access to local foods in eligible
schools from training, planning, and
developing partnerships to creating new
menu items, expanding local supply
chains, offering taste tests to children,
purchasing equipment, planting school
gardens, and organizing field trips to
agricultural operations.
Finally, USDA will continue to
provide technical assistance to State
agencies, schools, and other program
operators to ensure they have the
guidance and support they need to
successfully implement this rule. USDA
will release updated policy guidance
and will host a series of webinars to
provide a detailed overview of this
rulemaking. In addition,
12 U.S. Department of Agriculture. USDA
Launches $100 Million Healthy School Meals
Initiative, Announces Grant Program for Rural
Schools. September 23, 2022. Available at: https://
www.fns.usda.gov/news-item/fns-0010.22.
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communications resources related to
this rulemaking are available on the
USDA Food and Nutrition Service
website.13
Federal Strategies To Reduce Sodium
and Added Sugars in the Food Supply
USDA recognizes that schools and
child and adult care institutions are part
of the broader food environment. In
order to successfully make
improvements to the child nutrition
program meal patterns, stakeholders
have emphasized that similar
improvements must be made to the
broader food environment. For example,
stakeholders have suggested that
children are more likely to accept lower
sodium school meals if the meals they
consume outside of school are lower in
sodium. Research has shown that
consumer preferences and expectations
for salty tastes can adjust as dietary
intake changes.14
To that end, other Federal agencies
are supporting efforts to improve dietary
behaviors among the U.S. population.
For example, the Food and Drug
Administration (FDA) is taking an
iterative approach to gradually reduce
sodium in the U.S. food supply that
includes establishing voluntary sodium
targets for industry, monitoring and
evaluating progress, and engaging with
stakeholders. The FDA is especially
encouraging adoption of the voluntary
targets by food manufacturers whose
products make up a significant
proportion of national sales in one or
more food categories and restaurant
chains that are national and regional in
scope.15 These efforts are discussed in
greater detail in Section 5: Sodium.
The FDA is also committed to
reducing added sugars in the U.S. food
supply and in individual’s diets. In
2016, FDA issued a final rule 16
updating the Nutrition Facts label,
which requires, in part, a declaration of
the added sugars in a serving of a
product and the percent Daily Value (%
DV) for added sugars. Manufacturers
with $10 million or more in annual
sales were required to update their
labels by January 1, 2020; manufacturers
13 U.S. Department of Agriculture Food and
Nutrition Service. Available at: https://
www.fns.usda.gov/.
14 The Food and Drug Administration. Memo: Salt
Taste Preference and Sodium Alternatives. 2016.
Available at: https://www.regulations.gov/
document/FDA-2014-D-0055-0152.
15 The Food and Drug Administration. Sodium
Reduction. Available at: www.fda.gov/
SodiumReduction.
16 Food Labeling: Revision of the Nutrition and
Supplement Facts Labels (81 FR 33742, May 27,
2016). Available at: https://www.federalregister.gov/
documents/2016/05/27/2016-11867/food-labelingrevision-of-the-nutrition-and-supplement-factslabels.
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with less than $10 million in annual
food sales were required to update their
labels by January 1, 2021.
Additionally, following the 2022
White House Conference on Hunger,
Nutrition, and Health, the White House
released a National Strategy 17 that
highlighted that the intake of added
sugars for most Americans is higher
than what is recommended by the
Dietary Guidelines and included several
FDA initiatives to accelerate efforts to
empower individuals with information
and create a healthier food supply. In
November 2023, FDA, in collaboration
with USDA and the U.S. Department of
Health and Human Services, held a
virtual public meeting and listening
sessions entitled, ‘‘Strategies to Reduce
Added Sugars Consumption in the
United States.’’ This public meeting was
a commitment made in the National
Strategy and connected Federal
agencies, communities, and private
industry to explore different tactics for
reducing added sugars in the U.S. food
supply and in individuals diets.
Presentations during this meeting
provided a background on added sugars,
discussed strategies for reducing added
sugars by other countries, and
highlighted approaches to increase
engagement and education on added
sugars. This meeting was accompanied
by two days of facilitated listening
sessions where participants offered
feedback and recommendations for next
steps on proposed strategies.
The U.S. Department of Health and
Human Service’s Office of Disease
Prevention and Health Promotion’s
Healthy People 2030 initiative also
includes a focus on reducing
consumption of added sugars and
sodium in individuals aged 2 years and
older.18 As detailed in Section 2: Added
Sugars and Section 5: Sodium, the
Dietary Guidelines, which are updated
and jointly released by the USDA and
the Department of Health and Human
Services, recommend limiting foods and
beverages higher in added sugars and
sodium. Specifically, the Dietary
Guidelines recommend that added
sugars make up less than 10 percent of
calories per day for individuals age 2
years and older. The Dietary Guidelines
also recommend consuming less than
2,300 milligrams of sodium per day—
17 Biden-Harris Administration National Strategy
on Hunger, Nutrition, and Health, September 2022.
Available at: https://www.whitehouse.gov/wpcontent/uploads/2022/09/White-House-NationalStrategy-on-Hunger-Nutrition-and-HealthFINAL.pdf.
18 U.S. Department of Health and Human
Service’s Office of Disease Prevention and Health
Promotion. Health People 2030. Available at:
https://health.gov/healthypeople.
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and even less for children younger than
age 14.19
In addition, the historic White House
Conference on Hunger, Nutrition, and
Health inspired actions to support a
whole of society approach to improving
nutrition and health. Over $8 billion in
public- and private-sector commitments
were made to improve food and
nutrition security, promote healthy
choices, and improve physical activity.
USDA expects that, when carried
through, the commitments made as part
of the White House Conference will
support improvements to the broader
food environment, thereby supporting
efforts to improve nutrition in school
and child and adult care settings.
For example, the private sector made
the following commitments in fall
2022: 20
• Danone North America committed
to prioritizing new reduced-sugar, lowsugar, and no-added-sugar options in its
children’s products and pledged that 95
percent of these products will contain
less than 10 grams of total sugar per 100
grams of food product by 2030.
• The National Restaurant
Association committed to expand its
Kids Live Well program to 45,000
additional restaurants and food service
locations. Kids Live Well is a voluntary
initiative to help restaurants offer
healthier meal options for children that
meet added sugars, sodium, and calories
thresholds established by the latest
nutrition science.
• Tyson Foods committed to
reformulating and improving the
nutritional value of its prepared foods
portfolio, with a focus on reducing
sodium.
• Walgreens committed to increasing
the selection of fresh food in its stores
by 20 percent, including a greater
variety of fresh produce, and
implementing new solutions to
highlight healthy ingredients and
further reduce harmful ones.
The strides made in school nutrition
over the past decade demonstrate that
healthier school meals are possible
when everyone who plays a part—food
industry, school nutrition professionals,
19 U.S. Department of Agriculture and U.S.
Department of Health and Human Services. 2020–
2025 Dietary Guidelines for Americans. 9th Edition.
December 2020. Available at: https://
www.dietaryguidelines.gov/.
20 The White House. FACT SHEET: The BidenHarris Administration Announces More Than $8
Billion in New Commitments as Part of Call to
Action for White House Conference on Hunger,
Nutrition, and Health. September 28, 2022.
Available at: https://www.whitehouse.gov/briefingroom/statements-releases/2022/09/28/fact-sheetthe-biden-harris-administration-announces-morethan-8-billion-in-new-commitments-as-part-of-callto-action-for-white-house-conference-on-hungernutrition-and-health/.
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USDA, and others—work together
toward the common goal of improving
children’s health. This includes USDA
continuing to do its part to ensure
schools and other child nutrition
program operators have the support they
need to successfully implement this
rulemaking. USDA recognizes that child
nutrition program operators have a
challenging job and appreciates their
tireless dedication to the children in
their care. USDA is continually looking
for ways to better support program
operators who provide our Nation’s
children with nutritious meals and
snacks. The Department welcomes input
from stakeholders on what additional
guidance and support State agencies,
schools, and other program operators
will need to successfully implement this
rulemaking.
Overview of Public Comments and
USDA Response
USDA appreciates public interest in
the proposed rule. USDA initially
provided a 60-day public comment
period (February 7, 2023, through April
10, 2023). Based on stakeholder
requests 21 for additional time to review
the rule and assess its impact, USDA
extended the public comment period by
30 days. During the 90-day comment
period (February 7, 2023, through May
10, 2023), USDA received more than
136,000 comments. Of the total, about
125,000 were form letters from 46 form
letter campaigns, and about 5,000 were
unique submissions. An additional
6,400 were duplicate or non-germane
submissions. USDA received public
comments from State agencies, school
nutrition professionals, advocacy
groups, industry respondents,
professional associations, school
districts, CACFP sponsoring
organizations, dietitians, and
individuals, including students, parents
and guardians, grandparents, and other
caregivers. Overall, over 23,000
respondents, including over 700 unique
submissions, supported the proposed
rule in its entirety. Over 6,000
respondents, including over 1,000
unique submissions, opposed the
proposed rule in its entirety.
Many school nutrition professionals
supported provisions of the rule that
provide menu planners more flexibility,
and provisions that maintain
requirements that menu planners have
21 USDA received requests to extend the proposed
rule comment period from the American
Commodity Distribution Association and the Urban
School Food Alliance and from Senator Boozman
and Representative Foxx. The letters are available
at: https://www.regulations.gov/comment/FNS2022-0043-2915 and https://www.regulations.gov/
comment/FNS-2022-0043-12391.
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already successfully implemented. For
example, a national organization
representing tens of thousands of school
nutrition professionals offered support
for the following provisions that USDA
ultimately finalized or committed to in
this final rule:
• Maintaining the current
requirement allowing all schools to offer
fat-free and low-fat milk, flavored and
unflavored, to K–12 students.
• Maintaining the current
requirement that at least 80 percent of
weekly grains offered in school meals
are whole grain-rich.
• Committing to conducting a study
on potential associations between
sodium reduction and student
participation.
• Allowing schools more flexibility to
offer meats/meat alternates in place of
grains at breakfast.
• Allowing tribally operated schools,
schools operated by the Bureau of
Indian Education, and schools serving
primarily American Indian or Alaska
Native children to serve vegetables to
meet the grains requirement.
• Codifying in regulation that
traditional Indigenous foods may be
served in reimbursable school meals.
• Allowing nuts and seeds to credit
for the full meats/meat alternates
component in all child nutrition
programs and meals.
• Exempting bean dip from the total
fat standard in Smart Snacks
regulations.
• Allowing State agencies discretion
to make exceptions to the degree
requirement for school nutrition
directors hired in medium and large
districts.
USDA worked in collaboration with a
data analysis company to code and
analyze the public comments using a
commercial, web-based software
product. The Summary of Public
Comments report is available under the
Browse Documents tab in docket FNS–
2022–0043. All comments are posted
online at https://www.regulations.gov.22
The following paragraphs describe
general themes from the public
comments. Many respondents also
provided feedback on the specific
proposals. This specific feedback is
included in the subsequent sections of
the preamble, as applicable.
Public Comments: Dedication of School
Nutrition Professionals
Several respondents expressed
appreciation for the efforts of school
22 See: Docket FNS–2022–0043. Child Nutrition
Programs: Revisions to Meal Patterns Consistent
with the 2020 Dietary Guidelines for Americans.
Available at: https://www.regulations.gov/docket/
FNS-2022-0043.
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nutrition professionals. An advocacy
group noted that school nutrition
professionals provide balanced,
nutritious meals to children, promoting
academic success and supporting the
entire school community’s efforts to
enrich the lives of students. Another
respondent emphasized that school
nutrition professionals are deeply caring
people who are invested in children’s
health and wellbeing. An advocacy
group agreed, noting that school
nutrition professionals go ‘‘above and
beyond’’ to keep children nourished; as
an example, one respondent described
efforts at their school to create menus
that are nutritionally balanced,
flavorful, and cater to student
preferences. When considering options
for the final rule, one dietitian urged
USDA to listen to the school nutrition
professionals who ‘‘do the work’’ every
day by providing meals to children.
Respondents also commended
successful implementation of school
meal pattern improvements established
under the Healthy Hunger-Free Kids
Act. For example, one advocacy group
reported that the updated nutrition
standards enhanced the nutritional
quality of meals and increased student
participation. Another advocacy group
noted that school nutrition professionals
have worked tirelessly to reduce
sodium, calories, and fat; to introduce
students to whole grain foods; and to
increase fruits and vegetables in school
meals. Another respondent was proud
of efforts made by school nutrition
professionals thus far, emphasizing that
school meals are the healthiest meals
that most students receive each day. A
joint response from several elected
officials stated that strong school
nutrition requirements are ‘‘one of the
most important public health
achievements in a generation.’’ This
response also noted that school
cafeterias across the country are
‘‘leading the way to serving healthy,
delicious, and culturally relevant foods’’
to children.
USDA Response: USDA appreciates
and agrees with public comments that
cited the important work of school
nutrition professionals. The Department
values the vital work that school
nutrition professionals and other child
nutrition program operators do every
day to keep our Nation’s children
nourished and healthy. In this final rule,
USDA incorporated feedback from
individuals with firsthand experience
operating the child nutrition programs.
For example, this feedback is reflected
in Section 3A: Flavored Milk, where
USDA considered operational
challenges that respondents raised in
response to the proposal that would
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have applied different milk
requirements across grade levels. USDA
also considered child nutrition program
operator feedback when determining
implementation dates for the provisions
of this rule, including in Section 5:
Sodium.
Public Comments: Nutrition and Health
Over 11,000 respondents cited the
need for strong nutrition requirements.
For example, an advocacy group
suggested that aligning the school meal
nutrition requirements with the goals of
the Dietary Guidelines ‘‘sets our
students up for lifelong success.’’ Other
respondents emphasized the importance
of strong nutrition requirements to
children’s academic achievement and
overall wellbeing. A form letter
campaign stated that strong nutrition
requirements can help to address health
disparities and improve nutrition
equity. Another respondent agreed,
maintaining that the child nutrition
programs are important tools in
addressing health disparities and
advancing nutrition security among
communities of color. An advocacy
group emphasized the importance of
nutritious meals in schools and child
care settings, noting that these meals
often represent a significant portion of
children’s food intake. This respondent
argued that continued improvement in
the meal patterns could reduce
children’s risk for diet-related diseases.
Another advocacy group agreed, stating
that the school meal programs provide
more than half of some students’
calories and are often the healthiest
sources of food for school children. An
industry respondent described school
meals as a nutrition ‘‘success story’’ and
stated that good nutrition is essential to
children’s growth, learning, and
development. An advocacy group
emphasized that the proposed evidencebased standards will ‘‘make school
meals even healthier.’’
Some respondents, including a form
letter campaign, encouraged USDA to go
further; for example, by implementing
sodium reductions beyond those
proposed in the rule. Respondents also
encouraged USDA to strengthen the
whole grains proposal, by requiring all
grains offered in school meals to be
whole grain-rich.23 Others urged USDA
to adopt a swifter timeline for
implementation; for example, one
advocacy group recommended that
USDA ‘‘implement the strongest
nutrition standards on the fastest
23 To meet USDA’s whole grain-rich criteria, a
product must contain at least 50 percent whole
grains, and the remaining grain content of the
product must be enriched.
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timeline possible.’’ A few respondents,
including an advocacy group,
encouraged USDA to update the
Summer Food Service Program meal
patterns to more closely align with the
goals of the Dietary Guidelines,
including by serving more fruits,
vegetables, and whole grains. These
respondents emphasized the importance
of providing children with healthy,
high-quality meals year-round.
USDA Response: USDA appreciates
public comments that discussed the
importance of strong, science-based
nutrition requirements and the positive
impact on children’s health. The
Department agrees with respondents
that asserted that meals served in child
nutrition programs contribute to healthy
dietary patterns and improved dietary
outcomes. In this final rule, USDA has
considered these important factors,
along with the importance of ensuring
that the meal patterns are practical and
achievable for schools. For example,
this final rule will continue to reduce
sodium in school meals, while taking a
gradual approach to implementation to
give schools, students, and the food
industry time to adapt to the changes.
The Department also acknowledges
comments that requested more whole
grains in school meals; instead, this
final rule continues the requirement that
the majority of grains offered be whole
grain-rich, while providing schools
some flexibility to offer other grains.
USDA remains committed to its
statutory obligation to establish
nutrition requirements for school meals
that are consistent with the goals of the
Dietary Guidelines in efforts to improve
the nutritional quality of program meals
serve to the Nation’s children. While
USDA appreciates public comments
regarding the Summer Food Service
Program, extensive updates to the
Summer Food Service Program meal
pattern are outside the scope of this
rulemaking.
Public Comments: Student Participation
Many respondents expressed concern
that the proposed changes could
negatively impact student participation
and consumption of meals. Some
respondents suggested that, if the
proposed rule was finalized, students
would choose to consume a lunch from
home or elsewhere instead of
participating in the school meal
programs. These respondents argued
that this would result in nonparticipating students consuming a meal
that is less nutritious than school meals
offered under the current requirements.
Other respondents maintained that
school nutrition programs would suffer
if student participation declines.
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Respondents also raised concerns that
the proposed limits for added sugars
and sodium could make school meals
less appealing to students. For example,
an industry respondent asserted that the
proposed added sugars and sodium
limits would negatively impact the taste
of foods that children enjoy. However,
an advocacy group noted that students
and families support improving the
nutritional quality of school meals,
citing the role school meals play in
student academic achievement and
health. A joint comment from several
elected officials suggested that children
enjoy healthier school meals, and that
the amount of food wasted in schools
has not changed since the nutrition
requirements were updated in 2012.
USDA Response: Although USDA
does not expect that updated nutrition
requirements would negatively impact
student participation in the school meal
programs,24 the Department
acknowledges respondent concerns
about the importance of maintaining
student participation. The Department
strives to advance nutrition security
while also ensuring that school meals
are appealing and enjoyable to students.
The changes finalized in this rule
thoughtfully consider both concerns by
gradually phasing in required changes,
such as the added sugars limits and
sodium reduction. This phased-in
approach will give program operators
and children time to implement and
adapt to the changes. Additionally, as
noted in Section 5: Sodium, as part of
this rulemaking, USDA has committed
to conducting a study on potential
associations between sodium reduction
and student participation.
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Public Comments: Product Availability
Numerous respondents argued that
the proposed meal pattern changes
would force vendors out of the child
nutrition market, making it more
difficult for schools to find products
needed to comply with USDA meal
requirements. Several respondents
expressed concern about increased
costs, procurement challenges, and
reduced options for school breakfast
under the proposed rule. A joint
24 According to USDA research conducted
following implementation of the 2012 final rule,
‘‘There was a positive and statistically significant
association between student participation in the
NSLP and the nutritional quality of NSLP lunches,
as measured by the HEI–2010. Rates of student
participation were significantly higher in schools
with HEI–2010 scores in the third and highest
quartiles (that is, the top half) of the distribution
compared to the lowest quartile.’’ See page 38. U.S.
Department of Agriculture, Food and Nutrition
Service, Office of Policy Support, School Nutrition
and Meal Cost Study Summary of Findings.
Available at: https://www.fns.usda.gov/schoolnutrition-and-meal-cost-study.
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comment from a group of elected
officials agreed, arguing that the
proposed changes could lead to
‘‘increased complexity’’ in school food
purchasing, decreasing the number of
options available to schools and forcing
schools to compete for a limited supply
of specialized foods. Respondents also
expressed concern about ongoing
supply chain issues and food-price
inflation. One industry respondent
suggested that rather than implementing
new requirements, USDA should
maintain the current requirements and
teach students how to make healthy
choices through nutrition education.
A school food service director stated
that procurement would be a challenge
under the proposed rule and suggested
that it takes ‘‘a few years’’ for
manufacturers to catch up with new
regulations. This respondent also
suggested manufacturers do not
dedicate as much space to schoolspecific items in their warehouses,
which impacts product availability. An
advocacy group argued that it takes
industry three to five years, and a
significant amount of money, to
reformulate ‘‘any given product.’’ This
respondent also pointed out that the K–
12 sector tends to be the least lucrative
market for the food industry. Another
advocacy group agreed, arguing that the
cost of producing and stocking
specialized K–12 menu items is ‘‘too
high,’’ and the demand for these
products on the commercial market is
‘‘too low.’’ A State agency also
expressed concern about proposed
implementation timeframes, noting that
manufacturer and distributor
capabilities have not yet returned to prepandemic levels. A form letter campaign
encouraged USDA to work with the food
industry to ensure product availability,
particularly for lower sodium products.
One respondent stated that school
kitchens are understaffed, and school
nutrition professionals rely heavily on
food manufacturers to provide meals for
students. A school district raised
concerns about increased pressure for
scratch cooking; while this respondent
acknowledged they would ‘‘love for
more scratch options to be served,’’ they
did not view this as a realistic option
given current staffing challenges.
Respondents also cited the
importance of supporting local farmers
and producers and helping children
learn about where their food comes
from. One advocacy group cited the
benefits of local food systems, which
they argued stimulate local economies
and provide reliable product availability
during supply chain disruptions.
Respondents encouraged USDA to
consider equity and inclusion in
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establishing regulatory requirements; for
example, an advocacy group suggested
that USDA consider the broader food
system and supply chains, including
farm workers and other people
employed in the food system. This
respondent supported efforts to create a
fair and sustainable agricultural
economy. Another respondent
advocated for policies that encourage
child nutrition operators to source from
socially disadvantaged producers. An
advocacy group suggested that
purchases made through the child
nutrition programs should prioritize
respect, equity, and inclusion across the
food supply chain. This respondent
asserted that supporting local and
regional foods systems, including by
strengthening support for locally owned
agricultural and food processing
operations, may create more diversified
and resilient supply chains. While
offering support for the proposed
geographic preference provision, some
respondents suggested operators would
need more financial support to purchase
local foods, especially in the CACFP.
USDA Response: USDA recognizes
that many stakeholders expressed
concerns about product availability and
understands the impact of product
availability and cost on the operation of
the child nutrition programs, as well as
challenges posed by staffing constraints.
At the same time, the Department
appreciates public comments that cited
continuous industry efforts to develop
nutritious foods for child nutrition
programs, and many of the provisions of
this rule incorporate input from
industry respondents. For example,
USDA agrees with public comments that
stated there are products already
available that meet the product-based
limits for added sugars, which aligns
with data collected by USDA.25 USDA
expects that ongoing industry efforts to
develop nutritious foods will support
product availability for child nutrition
programs. USDA considered each of
these factors when developing this final
rule; for example, by moving forward
with important changes while providing
ample time for implementation. As
detailed in Section 2: Added Sugars and
Section 5: Sodium, USDA is providing
about three years for implementation of
the weekly added sugars limit and
sodium reduction in response to public
comments that suggested it takes about
25 U.S. Department of Agriculture Food and
Nutrition Service, Office of Policy Support data
collection of nutrition label information from major
cereal and yogurt manufacturer K–12 and food
service catalogs. Data were collected on 191 total
cereal products and 110 total yogurt products. See
Regulatory Impact Analysis.
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three years for manufacturers to
reformulate products.
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Public Comments: Financial Challenges
Many respondents emphasized the
importance of investing in school
nutrition programs financially. For
example, respondents cited concerns
about food cost, inflation, meal debt,
and supply chain challenges. An
advocacy group noted that many
stakeholder concerns about the
proposed rule are related to resource
constraints. This respondent suggested
financial pressures undermine the
program’s goals. Another advocacy
group expressed appreciation for the
HMI Initiative to support small and
rural schools, and supported USDA’s
plans to provide technical assistance,
share best practices, and encourage
collaboration with the food industry.
One State agency supported increased
meal reimbursements, investments in
kitchen equipment and infrastructure,
and more training opportunities.
Another respondent agreed, stating that
the program reimbursement rates are
‘‘simply not enough’’ to cover food and
labor costs, while others suggested
schools would need extra supplies or
funding to implement the updated meal
patterns.
USDA Response: USDA acknowledges
public comments from program
operators that emphasized that financial
sustainability is critical for successful
child nutrition program operations.
USDA understands that schools and
other program operators need support to
succeed in implementing updated
requirements. As part of this effort,
USDA continues to provide highquality, cost-effective foods through
USDA Foods and various grant-funded
opportunities. USDA has also provided
significant additional financial
resources to address specific needs,
such as the $3.8 billion in supply chain
assistance funds provided in fiscal years
2021, 2022, and 2023 to address product
shortages and price increases
experienced after the pandemic.26
While increasing the Federal
reimbursement rates is beyond USDA’s
authority and would require
Congressional action, the Department
remains committed to providing support
to child nutrition program operators.
Public Comments: Practical and Durable
Standards
Numerous respondents discussed the
need for attainable nutrition
requirements. Some respondents
26 U.S. Department of Agriculture. FNS Actions to
Address COVID–19 Related Supply Chain
Disruptions. Available at: https://
www.fns.usda.gov/supply-chain.
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asserted that certain proposals are
impractical, or that the school nutrition
programs cannot move beyond current
meal pattern requirements. A handful of
respondents suggested maintaining the
transitional standards as the permanent
school nutrition requirements,
suggesting the transitional standards
represent a ‘‘middle ground.’’ Many
respondents recommended that USDA
study the impact of the current meal
pattern requirements prior to making
any further changes.
Respondents cited concerns about the
broader food environment, arguing that
schools are not solely to blame for
children’s excess consumption of added
sugars and sodium. One respondent
pointed out that when considering the
full calendar year, many children
consume more meals outside of school
than in school. This respondent agreed
that school meals contribute to
children’s health but emphasized the
importance of improving food choices
in other settings. Another respondent
recommended that USDA focus on the
‘‘food system as a whole’’ and engage in
a public health initiative to reduce
added sugars and sodium in grocery
store foods.
Regarding implementation dates, one
dietitian recommended that USDA
delay implementation of any new
requirements until 2027. This
respondent suggested that additional
time would allow school nutrition
directors to educate staff on upcoming
changes and allow industry to develop
new food products. A school district
agreed, describing the implementation
timeframes for added sugars and sodium
as ‘‘a little rushed.’’ Several respondents
specifically recommended delaying
implementation of any provisions that
would impact CACFP. These
respondents raised concerns about a
lack of CACFP stakeholder engagement
and the importance of providing the
CACFP community ample time to
prepare for the changes.
Other respondents felt the proposed
implementation timeframes were
adequate. An advocacy group argued
that the food industry could adapt to
incremental implementation, which
they noted was built into the proposed
rule. A State agency agreed, suggesting
that the proposed phased-in
implementation would provide the
opportunity to revise menu offerings,
manage inventory, and offer technical
assistance. A second State agency
affirmed that the proposed
implementation dates provide adequate
lead time; however, this respondent also
noted that timely publication of the
final rule would be ‘‘critical’’ to allow
for product reformulation, procurement,
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and menu planning. An advocacy group
described USDA’s phased-in approach
as ‘‘reasonable,’’ stating that the
proposed rule would improve school
meals ‘‘in a practical way.’’ This
respondent suggested that the proposed
sodium limits, for example, would give
schools time to plan, source, and test
meals that meet the proposed limits.
Another advocacy group that described
the rule as ‘‘scientifically sound and
practical’’ argued that the proposed rule
would give schools time to implement
the new requirements while also
prioritizing children’s health. A joint
response from several elected officials
maintained that the proposed rule
included a ‘‘common-sense incremental
approach to implementation, making it
feasible for schools and the food
industry to have success.’’ An advocacy
group supported the phased-in
implementation for sodium but noted it
would be ‘‘incumbent’’ upon
manufacturers to reformulate products
to ensure the limits would be effective.
USDA Response: USDA recognizes
that meaningful improvement in the
nutritional quality of school meals is
best achieved by nutrition requirements
that are both ambitious and feasible.
The Department also acknowledges
public comments that suggested child
nutrition program operators need time
to successfully implement new
requirements, and that feedback is
reflected in this final rule. For example,
this final rule gradually phases in
certain requirements, such as the added
sugars limits, to provide program
operators time to make menu changes.
Additionally, this final rule includes
several provisions that provide menu
planners with more options to create
healthy meals; for example, by making
it easier for schools to offer meats/meat
alternates at breakfast (see Section 6:
Meats/Meat Alternates at Breakfast). By
incorporating valuable feedback from
stakeholders into this final rule, the
Department continues to put children’s
health at the forefront while also
ensuring that the program requirements
are achievable and set up schools and
child and adult care institutions for
success.
Public Comments: Other School
Nutrition Comments
Some respondents recommended
other meal pattern requirements or
offered suggestions for USDA to
consider. One respondent suggested
adding a requirement for ‘‘healthy fats’’
in school meals, while another
recommended establishing a minimum
fiber standard. Another respondent
encouraged USDA to provide recipes,
training, and nutrition education to
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encourage schools to offer more seafood
in school meals. Numerous respondents
recommended that USDA restrict or
limit the use of artificial or nonnutritive sweeteners in school meals.
Others encouraged USDA to provide
incentives for fresh fruits and
vegetables, rather than restricting
certain foods. A form letter campaign
and numerous other respondents
supported expanding access to
vegetarian, vegan, or plant-based school
meals. One respondent suggested
implementing a plant-based protein
requirement in school meals, while
another encouraged schools to adopt a
‘‘meat-free day.’’ A few respondents
noted that Black, Indigenous, and other
People of Color (BIPOC) are three times
as likely to follow a plant-based diet
than white people and suggested that
providing more plant-based meals
would support equity in the school meal
programs. Respondents also cited the
importance of meeting cultural food
preferences. For example, one advocacy
group noted that food is ‘‘socially and
emotionally nurturing’’ and emphasized
the importance of meeting nutrition
requirements as well as food
preferences. Another advocacy group
cited a research brief that suggested that
‘‘enhancing the palatability and cultural
appropriateness of meals’’ offered
would improve meal consumption.
A few respondents, particularly those
who operate multiple child nutrition
programs, supported stronger alignment
of the nutrition requirements for all
program meal patterns. A student
encouraged USDA to seek student
perspectives on meal pattern
requirements. This respondent
suggested students who participate in
the school meal programs would
provide important perspectives on food
waste, cultural relevance, and nutrition.
Although outside the scope of this
rulemaking, several respondents
supported expanding access to free
school meals and providing students
with more time to eat school lunch. For
example, one respondent noted that
studies have shown that even modest
increases in time to eat result in
‘‘improved consumption, particularly of
fruit and vegetables, and reduced food
waste.’’
USDA Response: USDA appreciates
public comments that provided
additional feedback and suggestions for
new requirements beyond what was
proposed. Certain suggestions, such as
adjusting the eligibility requirements for
free meals or providing more time for
children to eat their meals, are beyond
USDA’s authority. While USDA does
not have authority to regulate the length
of school meal periods, USDA
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encourages schools to provide children
adequate seat time to consume their
meals. USDA acknowledges public
comments encouraging more plantbased meals as a strategy to support
equity in school meals. Meal pattern
requirements are established to provide
the foundation of well-balanced meals,
and USDA encourages program
operators to develop menus that meet
the needs of their diverse communities.
This rulemaking provides more
opportunities for schools to offer plantbased meals. In response to requests to
streamline program requirements,
USDA has endeavored to better align
child nutrition program requirements in
this rulemaking; for example, by
aligning nut and seed crediting across
all child nutrition programs and meals
(see Section 11: Nuts and Seeds). While
other suggestions outside the scope of
this rulemaking, such as developing
requirements for ‘‘healthy fats’’ and
artificial sweeteners, are not included in
the final rule, the Department remains
committed to providing the technical
assistance needed to enable schools to
serve diverse, culturally diverse meals
to meet the unique needs and
preferences of their students.
Public Comments: Child and Adult Care
Food Program
Although the proposed rule primarily
focused on revisions to the school meal
patterns, the following proposals
applied to CACFP:
• Added Sugars: USDA proposed
updating the current CACFP total sugars
limits for breakfast cereals and yogurt to
added sugars limits, consistent with the
proposed limits for breakfast cereals and
yogurt in the school meal programs.
• Whole grains definition: USDA
proposed adding a definition of ‘‘whole
grain-rich’’ to CACFP regulations,
consistent with the definition USDA
proposed adding in school meal
regulations.
• Menu Planning Options for
American Indian and Alaska Native
Students: USDA proposed to allow
CACFP institutions and facilities
serving primarily American Indian or
Alaska Native children to substitute
vegetables for grains. This proposal also
applied to NSLP, SBP, and SFSP.
• Nuts and Seeds: USDA proposed to
allow nuts and seeds to credit for the
full meats/meat alternates component in
all child nutrition program meals and
snacks. This proposal applied to NSLP,
SBP, SFSP, and CACFP.
• Geographic Preference: USDA
proposed to expand geographic
preference options by allowing ‘‘locally
grown, raised, or caught’’ as
procurement specifications for
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unprocessed or minimally processed
food items in the child nutrition
programs. This proposal applied to
NSLP, SBP, SFSP, and CACFP.
• Miscellaneous Changes: USDA
proposed to change the name of the
‘‘meats/meat alternates’’ meal
component to ‘‘protein sources’’ in
CACFP, consistent with the proposed
change in NSLP and SBP. USDA also
proposed a few other minor terminology
changes and meal pattern table revisions
that impact CACFP.
• Proposals from Prior USDA
Rulemaking: USDA signaled its intent to
finalize a prior proposal that would
update meal modification regulations
for disability and non-disability reasons,
impacting NSLP, SBP, and CACFP.
USDA signaled its intent to finalize a
prior proposal regarding a technical
correction for nutrient requirements for
fluid milk substitutes, impacting NSLP,
SMP, SBP, and CACFP.
With the exception of the proposal to
change the name of the ‘‘meats/meat
alternates’’ meal component to ‘‘protein
sources’’ in CACFP, which is not
finalized, all of the proposed changes to
CACFP are finalized in this rulemaking.
USDA received over 90 comments
from CACFP sponsoring organizations.
USDA also received comments from
advocacy groups representing the
CACFP community, and hundreds of
form letters from individuals who are a
part of the CACFP community. An
advocacy group recommended that
USDA engage CACFP stakeholders
before finalizing and implementing the
rule. This respondent argued such
engagement is necessary to understand
the rule’s impacts on CACFP, including
costs, product availability, and
nutritional quality. Another advocacy
group emphasized the importance of
supporting efforts to stabilize the
CACFP workforce. This respondent
recommended delaying implementation
to ensure that the CACFP community
has time to prepare for implementation
and provide input on the proposed
changes.
Specific feedback from the CACFP
community is detailed in the relevant
sections throughout this preamble. At a
high level, concerns raised by the
CACFP community include:
• Potential impact on training,
technical assistance, and resource
development, especially related to the
proposed terminology change for the
meats/meat alternates component.
• Potential costs associated with
updating websites, materials, menus,
and recipes.
• The need for implementation
support for the proposed changes, such
as the need for tools and resources to
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successfully implement the proposed
added sugars limits for yogurt and
cereal. Specifically, one advocacy group
recommended USDA develop an
‘‘approved’’ list of products that could
be offered under the added sugars
limits.
• An overall concern that the
proposed rule lacked a ‘‘CACFP lens,’’
and therefore did not adequately
consider its potential impact on the
CACFP community.
The CACFP community also raised
concerns about other challenges facing
operators that were outside the scope of
the proposed rule. For example,
respondents noted ongoing pandemic
recovery, staff shortages, and vendor
losses, and the loss of pandemic-era
funding and flexibilities. Respondents
emphasized the importance of
supporting CACFP, which one advocacy
group described as a ‘‘financial and
nutritional lifeline’’ for many children
and families. Other respondents agreed,
noting that CACFP plays a ‘‘vital role in
supporting good nutrition’’ and
providing ‘‘quality affordable child
care’’ for families.
USDA Response: USDA appreciates
public comments received on behalf of
the CACFP community and agrees that
CACFP operators play a vital role in
supporting the goals of child nutrition
programs. USDA acknowledges that the
listening sessions conducted prior to the
development of the proposed rule were
primarily focused on nutrition
requirements for school meal programs,
given that the majority of the provisions
in the proposed rule relate to NSLP and
SBP. However, many of the
organizations that USDA engaged with
through these listening sessions also
advocate on behalf of CACFP and/or
SFSP operators, in addition to school
meals. USDA also received over 8,000
comments on the transitional standards
rule, including comments related to
CACFP, which were considered in the
development of the proposed rule.
Public comments submitted in response
to the 2023 proposed rule, including
those submitted by the CACFP
community, were also crucially
important to the development of this
final rule. As emphasized throughout
the proposed rule, USDA greatly values
this feedback. USDA has responded to
the CACFP community’s feedback in the
subsequent sections of the rule,
especially Section 2: Added Sugars and
Section 20: Miscellaneous Changes.
Public Comments: Supplemental
Nutrition Assistance Program
Several respondents raised concerns
about the Supplemental Nutrition
Assistance Program, or SNAP, a USDA
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Federal assistance program. While
comments related to SNAP are outside
the scope of this rulemaking, USDA is
providing a summary of the comments
here. Respondents were concerned that
SNAP does not impose the same
nutrition requirements as USDA’s child
nutrition programs. These respondents
asserted that students, including those
participating in SNAP, are exposed to
unhealthy food outside of school. Some
respondents argued that all Federal
nutrition programs, including SNAP,
should have the same nutrition
requirements. For example, a dietitian
suggested that if USDA finalizes added
sugars limits for school meals, those
limits should also apply to SNAP.
USDA Response: USDA appreciates
public comments about SNAP and its
relation to the Department’s other
Federal assistance programs, including
the child nutrition programs. USDA’s
mission is to increase food security and
reduce hunger by providing children
and income eligible people access to
food, a healthful diet, and nutrition
education in a way that supports
American agriculture and inspires
public confidence. Within that mission,
USDA administers 16 critical nutrition
assistance programs, one of which is
SNAP, the Nation’s largest domestic
food and nutrition assistance program
for income eligible Americans. SNAP is
the primary source of nutrition
assistance for millions of people each
month, and SNAP participants can
purchase a variety of eligible foods
items, as defined by statute.27 USDA is
committed to helping SNAP
participants and all Americans make
healthier food choices through
evidenced-based nutrition education.
SNAP-Ed is an evidenced-based,
federally funded grant program that
supports SNAP participants with
nutrition education to help participants
maximize benefits and make healthy
food choices to promote nutrition
security. In USDA’s most recent analysis
of food purchases by SNAP and nonSNAP households,28 SNAP households
and non-SNAP households purchased
similar types of foods, such as fruit,
vegetables, and milk. This affirms that
SNAP households are purchasing
similar types of nutrient-dense foods
compared to non-SNAP households.
Additionally, USDA encourages healthy
eating for SNAP participants through
27 See: Section 3(k) of the Food and Nutrition Act
of 2008 (7 U.S.C. 2012(k)).
28 U.S. Department of Agriculture. Foods
Typically Purchased by Supplemental Nutrition
Assistance Program (SNAP) Households. November
18, 2016. Available at: https://www.fns.usda.gov/
snap/foods-typically-purchased-supplementalnutrition-assistance-program-snap-households.
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incentive programs, which provide
additional ways to make healthy
choices, such as purchasing fruits and
vegetables, easier for SNAP participants.
Recent research 29 shows that
participants of the Gus Schumacher
Nutrition Incentive Program (GusNIP)
reported greater fruit and vegetable
intake and improvements in food
security. Similarly, in a Healthy
Incentive Pilot (HIP) report,30
participants spent more SNAP benefits
on fruits and vegetables than non-HIP
households. SNAP incentive programs,
along with all USDA Federal nutrition
assistance programs, play an important
role in making nutritious foods more
accessible and affordable. While there
are differences across the programs,
each of USDA’s Federal nutrition
assistance programs are critical to
advancing nutrition security and
promoting healthy dietary patterns.
Section 2: Added Sugars
Current Requirement
Currently, there are no added sugars
limits in the school meal programs.
Under the current regulations, schools
may choose to serve some menu items
and meals that are high in added sugars,
provided they meet average weekly
calorie limits (7 CFR 210.10(f)(1) and
220.8(f)(1)).
The Dietary Guidelines for Americans,
2020–2025 recommends limiting intake
of added sugars to less than 10 percent
of calories per day. School meal data
from school year (SY) 2014–2015 found
that the average percentage of calories
from added sugars in school meals was
approximately 11 percent in school
lunch and 17 percent in school
breakfast.31 The Dietary Guidelines
further indicate that 70 to 80 percent of
all school-aged children exceed the
recommended limit for added sugars.32
The current calorie requirements for the
school meal programs are intended to
encourage schools to choose nutrientdense foods and beverages. However,
29 GusNIP NTAE. Gus Schumacher Nutrition
Incentive Program (GusNIP): Impact Findings Y3:
September 1, 2021 to August 31, 2022. Prepared for
U.S. Department of Agriculture, National Institute
of Food and Agriculture; 2023. Available at: https://
nutritionincentivehub.org/gusnip-ntae-y3-impactfindings.
30 U.S. Department of Agriculture. Evaluation of
the Healthy Incentives Pilot (HIP) Final Report.
September 2014. Available at: https://
www.fns.usda.gov/snap/hip/final-evaluation-report.
31 Fox MK, Gearan EC, Schwartz C. Added Sugars
in School Meals and the Diets of School-Age
Children. Nutrients. 2021; 13(2):471. Available at:
https://doi.org/10.3390/nu13020471.
32 U.S. Department of Agriculture and U.S.
Department of Health and Human Services. 2020–
2025 Dietary Guidelines for Americans. 9th Edition.
December 2020. Available at: https://
www.dietaryguidelines.gov/.
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USDA determined that a specific added
sugars requirement would more
effectively reduce added sugars in
school meals, consistent with the goals
of the Dietary Guidelines.
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Proposed Rule
USDA proposed to reduce added
sugars in school meals through a
gradual, phased-in, two-step approach:
product-based limits followed by a
weekly dietary limit. First, beginning in
SY 2025–2026, USDA proposed to
implement quantitative limits for
leading sources of added sugars in
school meals. The proposed productbased limits were as follows:
• Grain-based desserts: would be
limited to no more than 2 ounce
equivalents per week in school
breakfast, consistent with the current
limit for school lunch. Examples of
grain-based desserts include cereal bars,
doughnuts, sweet rolls, toaster pastries,
coffee cakes, and fruit turnovers.33
• Breakfast cereals: would be limited
to no more than 6 grams of added sugars
per dry ounce.
• Yogurt: would be limited to no
more than 12 grams of added sugars per
6 ounces.
• Flavored milk: would be limited to
no more than 10 grams of added sugars
per 8 fluid ounces or, for flavored milk
sold as a competitive food 34 for middle
and high schools, 15 grams of added
sugars per 12 fluid ounces.35
For the second step, beginning in SY
2027–2028, USDA proposed to
implement a dietary specification for
added sugars. The dietary specification
would limit added sugars to less than 10
percent of calories per week in the
school lunch and breakfast programs.
This weekly limit would be in addition
to the product-based limits described
above.
USDA requested public input on both
steps as well as the following questions:
• USDA is proposing product-specific
limits on the following foods to improve
the nutritional quality of meals served
to children: grain-based desserts,
33 U.S. Department of Agriculture, Food Buying
Guide for Child Nutrition Programs. Available at:
https://foodbuyingguide.fns.usda.gov/Appendix/
DownLoadFBG. See: Section 4—Grains, Exhibit A:
Grain Requirements for Child Nutrition Programs,
for a list of grain-based desserts.
34 Competitive food is a term to define all food
and beverages that are available for sale to students
on the school campus during the school day. (7 CFR
210.11(a)(2))
35 For clarification, USDA proposed a higher
added sugars limit for flavored milk sold as a
competitive food in middle and high schools due
to the larger serving size. The serving size for milk
offered as part of a reimbursable meal is 8 fluid
ounces. Milks sold to middle and high school
students as a competitive food may be up to 12
fluid ounces.
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breakfast cereals, yogurt, and flavored
milk. Do stakeholders have input on the
products and specific limits included in
this proposal?
• Do the proposed implementation
timeframes provide appropriate lead
time for food manufacturers and schools
to successfully implement the new
added sugars standards? Why or why
not?
• What impact will the proposed
added sugars standards have on school
meal menu planning and the foods
schools serve at breakfast and lunch,
including the overall nutrition of meals
served to children?
For consistency across child nutrition
programs, USDA also proposed to apply
the product-based added sugars limits to
breakfast cereals and yogurt served in
the CACFP; under the proposed rule,
the added sugars limits would replace
the current total sugars limits for
breakfast cereals and yogurt in CACFP.
The proposed product-based limits for
CACFP aligned with the proposed limits
for school breakfast and lunch, and were
as follows:
• Breakfast cereals: would be limited
to no more than 6 grams of added sugars
per dry ounce.
• Yogurt: would be limited to no
more than 12 grams of added sugars per
6 ounces.
Public Comments
USDA received tens of thousands of
comments on added sugars, with most
in support of reducing added sugars in
school meals. State agencies, school
nutrition professionals, advocacy
groups, industry respondents,
professional organizations, CACFP
sponsoring organizations, dietitians, and
individual respondents, such as parents
and students, provided input on the
proposals for added sugars. At a highlevel, respondents provided the
following feedback on added sugars
requirements:
• Limiting added sugars in school
meals is important for children’s health
and academic performance.
• Product-based limits would
incentivize the food industry to
reformulate products to help schools
meet the weekly added sugars limit.
• Many respondents expressed a
preference for one type of limit over the
other:
• Some respondents suggested that
product-based limits would be easier
and less burdensome for program
operators to implement compared to the
weekly limit.
• Other respondents asserted that
weekly limits align with
recommendations from the Dietary
Guidelines and would allow more
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flexibility for menu planners compared
to the product-based limits.
The following paragraphs describe
specific feedback on the proposal as
well as feedback on each step of the
proposal: product-based limits and
weekly limits.
Reducing Added Sugars and Children’s
Health
Numerous respondents, including
advocacy groups, school districts,
school nutrition professionals, parents,
and a few form letter campaigns,
supported added sugars limits in school
meals. Several advocacy groups justified
limits on added sugars based on the
recommendations from the Dietary
Guidelines. One advocacy group
asserted that reducing added sugars is
‘‘urgent’’ because children’s current
intake of added sugars is high. Other
proponents reasoned that implementing
added sugars limits in school meals
would be beneficial to children’s health.
An advocacy group applauded the
proposal because it makes a distinction
between naturally occurring and added
sugars and creates an incentive to
reduce added sugars in ‘‘hyperprocessed products.’’ A few parents
emphasized that reducing added sugars
is a top health priority. One parent
strongly supported the proposed limits,
stating that currently, ‘‘children who
rely on school meals [have] no option
but to eat sugary breakfasts.’’ An
individual cited multiple studies
demonstrating the negative impacts of
added sugars on health, and an
advocacy group noted that consuming
too many added sugars can increase the
risk of type 2 diabetes and heart disease.
A few individuals and a form letter
campaign affirmed that reducing added
sugars may help address health
disparities by improving the overall
nutritional quality of school meals.
Challenges With Reducing Added
Sugars
Other respondents cited challenges
with reducing added sugars in school
meals. A school district appreciated
USDA’s efforts but voiced concerns that
an added sugars limit would drastically
reduce schools’ buying options. One
school food service director claimed
that school meals are already low in
sugar and that tracking added sugars
would be another standard to monitor.
An industry respondent noted that if the
proposed rule is finalized, added sugars
would be the only element in the meal
pattern ‘‘with two prongs of compliance
monitoring,’’ as it would be subject to
both product-based and weekly limits.
A dietitian expressed concern about the
palatability of meals, adding that
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limiting added sugars could negatively
impact student participation. One
individual supported reducing added
sugars, but expressed concern that
students will not like the food, which
could increase food waste.
One industry respondent argued that
the existing calorie ranges ‘‘adequately
control for sugar’’ and schools ‘‘should
not be further regulated’’ with added
sugars limits. Another industry
respondent opposed the proposed
added sugars limits due to the cost of
product reformulation. An advocacy
group also raised concerns about
product reformulation, noting that each
time a food producer needs to change
the specifications of a product, it can
take up to three years and cost as much
as $750,000 per item. This respondent
was concerned that some manufacturers
may choose to stop making schoolspecific items instead of reformulating
their products.
Proposed Approach: Product-Based
Limits
Over 86,000 respondents, including
96 unique comments, supported the
proposed product-based limits in
general; comment counts specific to
each product-based limit are detailed in
each product-based comment summary
section, below. A school district
suggested that product-based limits
would provide helpful benchmarks for
initial added sugars reductions. An
industry respondent asserted that
product-based limits would help reduce
added sugars in breakfast items. An
individual agreed, stating that limiting
high-sugar breakfast items would
support children in the classroom as
well. This respondent explained that
breakfasts that are high in sugar do not
provide sustainable energy for students
to focus in the classroom. A professional
organization stated that product-based
limits would promote ‘‘progress toward
more nutrient dense’’ foods, and that the
phased-in approach would allow
schools and manufacturers time to
‘‘learn and adapt.’’
Other respondents supported the
product-based limits but did not
support the weekly limit. For example,
an advocacy group affirmed that the
product-based limits would be easier for
schools operationally, noting that
CACFP sponsoring organizations have
successfully implemented productbased limits for breakfast cereals and
yogurt. This advocacy group stated that
product-based limits would better align
child nutrition program requirements
and reduce administrative burden. A
State agency suggested that the
proposed product-based limits would
help to educate the public about the
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health impacts of added sugars.
However, this State agency did not
support the weekly limit, asserting that
it may be burdensome for schools. A
school district also preferred the
product-based limits over the weekly
limit, suggesting that product-based
limits would be easier to implement
after schools overcome the initial
burden of identifying compliant
products. An advocacy group agreed,
maintaining that the product-based
limits are necessary to reduce added
sugars at breakfast, but noting that the
weekly limit would ‘‘negatively impact
school meal menu planning.’’ An
industry respondent described the
product-based limits as ‘‘appropriate
tools to reduce consumption of added
sugars,’’ and argued that an additional
weekly limit would be ‘‘duplicative.’’
About 100 respondents, including 81
unique comments, opposed proposed
product-based limits in general;
comment counts specific to each
product-based limit are detailed in each
product-based comment summary
section, below. A food service director
opposed the proposed limits for school
breakfast specifically, describing
breakfast as an important meal and
suggesting that some added sugar
encourages students to eat breakfast. An
individual stated that product-based
limits would decrease the availability of
grab-and-go meals and would reduce
overall breakfast participation. Several
respondents, including industry
respondents, school districts, and
dietitians, added that product-based
limits would hinder alternative
breakfast models (e.g., breakfast in the
classroom) because pre-packaged, grainbased desserts are more commonly
offered in these models. A dietitian
claimed that even though some popular
whole grain products served at breakfast
contain added sugars, the nutritional
benefits of these foods ‘‘outweigh the
sugar content.’’ A State agency agreed
that breakfast cereals, yogurt, and
flavored milks provide ‘‘numerous
essential nutrients’’ and raised concerns
about the potential negative impacts of
decreased consumption under the
product-based limits. A few school
districts expressed concerns about
increased costs. An industry respondent
asserted that product-based limits are
‘‘too prescriptive and unnecessarily
complicate the nutrition standards.’’
Instead of requiring the product-based
limits, a State agency suggested USDA
partner with K–12 food manufacturers
to work toward implementation of
voluntary, product-based added sugars
limits.
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Proposed Product-Based Limit: GrainBased Desserts at Breakfast
Over 900 respondents supported the
proposed limit for grain-based desserts
in school breakfast, including 20 unique
comments. A parent applauded limits
for grain-based desserts at breakfast,
suggesting that they would ‘‘encourage
more nutrient-dense choices.’’ An
individual supported limits on grainbased desserts, asserting that schools
can ‘‘find healthier ways to serve
breakfast.’’ A school nutrition
professional agreed, supporting a limit
on ‘‘desserts [and] sweet entre´es during
breakfast.’’ An advocacy group
explained that applying the current
school lunch limit for grain-based
desserts to school breakfasts (i.e., the
ability to offer up to 2 ounce equivalents
of grain-based desserts per week) would
help simplify menu requirements.
Over 700 respondents opposed the
proposed limit for grain-based desserts
in school breakfast, including 85 unique
comments. Many opponents stated that
grain-based desserts are popular among
students and that limiting these foods
may impact student breakfast
participation. An individual raised
concerns that schools have few options
at breakfast and reducing grain-based
desserts would further limit menus. An
advocacy group noted that currently,
schools offer a variety of grain items at
breakfast to promote participation, for
example, by including whole grain-rich
toaster pastries and whole grain-rich
cereal bars daily, along with whole grain
donuts and whole grain cinnamon rolls
on occasion. This respondent
maintained that the proposed rule
would severely limit schools’ ability to
serve these popular items at breakfast. A
school district noted that convenient,
on-the-go grain items are important
options for students who attend
morning tutoring to recover from
learning loss following the COVID–19
pandemic.
Several respondents cited confusion
about the definition of ‘‘grain-based
dessert’’ as described in Exhibit A: Grain
Requirements for Child Nutrition
Programs of the Food Buying Guide.36
An industry respondent argued that
under current policy, grain-based
desserts are a ‘‘list of foods with no
explanation of what sets them apart
from other grain foods.’’ This
respondent noted this list includes a
wide range of foods that can differ
36 U.S. Department of Agriculture, Food Buying
Guide for Child Nutrition Programs. Available at:
https://foodbuyingguide.fns.usda.gov/Appendix/
DownLoadFBG. See: Section 4—Grains, Exhibit A:
Grain Requirements for Child Nutrition Programs,
for a list of grain-based desserts.
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vastly in added sugars content.
Additionally, this respondent suggested
that under the proposed rule,
manufacturers would have little
incentive to reduce added sugars in
grain-based desserts, since these
products would still face ‘‘strict
limitations,’’ regardless of their added
sugars content. A State agency noted
that items such as cereal bars are not
typically identified as ‘‘desserts’’
outside of the child nutrition programs
and encouraged USDA to reevaluate the
food items that are considered grainbased desserts. A form letter campaign
agreed, pointing out that many items
considered to be grain-based desserts
are offered as part of a balanced
breakfast at school or at home. A State
agency requested clarification on what
the proposed grain-based dessert limit
for school breakfast would mean for
preschool meals, noting that the meal
pattern currently does not allow any
grain-based desserts to be offered to
preschoolers.
Proposed Product-Based Limit:
Breakfast Cereals
Over 900 respondents supported the
proposed product-based added sugars
limit for breakfast cereals, including 20
unique comments. Many respondents
supported the proposal for breakfast
cereals without providing additional
rationale. A State agency affirmed that
there are plenty of breakfast cereals that
already meet the proposed productbased limit. This State agency also
suggested that the implementation date
would provide sufficient time for
manufacturers to decrease added sugars
in non-compliant breakfast cereals.
Another State agency supported limiting
added sugars in breakfast cereals but
recommended increasing the limit to 8
or 9 grams per dry ounce, instead of the
proposed 6 grams per dry ounce.
About 50 respondents opposed the
proposed product-based limit for
breakfast cereals, including 33 unique
comments. A school nutrition
professional and several school districts
expressed concern that the productbased limit for breakfast cereals would
severely limit variety. An industry
respondent claimed that they provide
numerous breakfast cereal options that
are inexpensive, convenient, and
popular with students, and argued that
the product-based limit is not necessary
because the weekly limit would
effectively limit breakfast cereals that
are high in added sugars. This
respondent stated that their school
breakfast cereals provide less than 8
grams of added sugars per serving, but
that the product-based limit would limit
their options for schools to only two
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cereals. A school district argued that the
breakfast cereals that meet the proposed
product-based limit are not preferred by
students.
Proposed Product-Based Limit: Yogurt
Nearly 1,000 respondents supported
the proposed product-based added
sugars limit for yogurt, including 24
unique comments. An industry
respondent suggested that ‘‘many
options on the market meet the
proposed limit’’ for yogurt (12 grams of
added sugars per 6 ounces). This
respondent noted that manufacturers
have greater ability to formulate yogurts
that meet a product-based limit, as
opposed to a weekly limit. Another
industry respondent suggested that
some yogurts would meet the proposed
product-based limit, while others would
not, potentially requiring reformulation.
A parent who supported the productbased limit suggested that yogurt could
be sweetened with fruit instead of
added sugars. A professional
organization noted that most yogurt
served in their program already meets
the proposed product-based limit and
described it as ‘‘realistic for
manufacturers and programs.’’
Forty respondents opposed the
proposed product-based added sugars
limit for yogurt, including 21 unique
comments. A CACFP sponsoring
organization asserted that it would limit
the yogurt that program operators can
offer and only allow varieties that
‘‘children will not want to eat.’’ A State
agency described the proposed limit as
‘‘confusing,’’ noting that most yogurt
comes in 4-ounce packages and schools
would need to ‘‘do culinary math’’ to
determine how to apply the limit, which
was for 6-ounce packages. An industry
respondent suggested that yogurt
products should be allowed to have
various levels of sugars so that schools
have more flexibility in selecting
products. One school district shared
that yogurt varieties that are currently
popular with students at breakfast
would not meet the product-based limit.
This respondent raised concerns that,
under the proposed limit, certain
varieties of yogurt would be eliminated
from their menus and there would be
‘‘limited choices for replacements.’’
Proposed Product-Based Limit: Flavored
Milk
Over 900 respondents supported the
proposed product-based limit for
flavored milks, including 44 unique
comments. A State agency maintained
that they did not expect the flavored
milk limit to be an issue, as dairy
suppliers are already working to reduce
added sugars in flavored milks. Another
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State agency and two professional
associations also supported the
proposed limits, and one of these
professional associations noted that
most milk producers already meet the
proposed limit. A school district
confirmed that flavored milks currently
offered in their district meet the
proposed added sugars limit. An
industry respondent suggested that the
proposed product-based limit for
flavored milks is ‘‘likely achievable’’ but
cautioned that some reformulation
efforts to reduce added sugars have
started to impact palatability. An
advocacy group recommended applying
the added sugars limits for flavored
milks to SMP and CACFP ‘‘to ensure
maximum positive impact on child
health.’’
Fifty respondents opposed the
proposed product-based limit for
flavored milks, all of which were unique
comments. A State agency suggested
that the product-based limit for flavored
milks ‘‘may not be necessary and may
cause difficulties for schools lacking
access to multiple options.’’ This State
agency pointed to existing efforts in the
dairy industry to reduce added sugars in
flavored milks, including the
International Dairy Foods Association’s
recent commitment to lower added
sugars in flavored milks available in
schools.37 While acknowledging the
great improvement, the State agency
noted that, depending on their location,
some rural schools may not have access
to flavored milk options that meet the
proposed limit. Another State agency
expressed concern about the proposed
limit, noting that producers in their
State currently offer a fat-free, flavored
milk with 11 grams of added sugars per
8 fluid ounces. This State agency
questioned whether it would be worth
the financial burden for this producer to
reformulate their product to reduce
added sugars by 1 gram and meet the
proposed 10 grams of added sugars per
8 fluid ounces limit. Another State
agency mentioned a milk distributor
37 In April 2023, the International Dairy Foods
Association announced its ‘‘Healthy School Milk
Commitment.’’ According to a press release from
the International Dairy Foods Association,
‘‘[b]eginning with the 2025–2026 school year, 37
school milk processors representing more than 90%
of the school milk volume in the United States
commit to provide healthy, nutritious school milk
options with no more than 10 grams of added sugar
per 8 fluid ounce serving.’’ See: International Dairy
Foods Association. IDFA Announces ‘Healthy
School Milk Commitment’ to Provide Nutritious
Milk with Less Added Sugar for Students in Public
Schools, Surpassing USDA Standards. April 5,
2023. Available at: https://www.idfa.org/news/idfaannounces-healthy-school-milk-commitment-toprovide-nutritious-milk-with-less-added-sugar-forstudents-in-public-schools-surpassing-usdastandards.
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that currently has a flavored milk option
with 13 grams of added sugars per 8
fluid ounces. Numerous respondents
provided additional input on flavored
milks, which is detailed in Section 3A:
Flavored Milk.
Product-Based Limits: Impact on Child
and Adult Care Food Program
USDA also received feedback from the
CACFP community about how the
proposed product-based limits for
breakfast cereals and yogurt would
affect CACFP. Several respondents
opposed any changes to current CACFP
total sugars limits, citing the potential
burden of implementing the change and
the operational differences between
school meals and CACFP. For example,
an advocacy group suggested that
USDA’s review of breakfast cereals and
yogurt, which focused on products for
K–12 schools, did not necessarily reflect
the yogurt products available to CACFP
operators. An industry respondent
agreed, adding that there may be ‘‘little
to no demand for these products in
grocery stores,’’ and products that are
commonly served in schools may not be
available in the broader food supply.
Another industry respondent suggested
that the proposed change for yogurt
could impact the type of yogurt
available in CACFP, resulting in ‘‘less
preferred yogurt types’’ offered in the
Program.
An advocacy group asserted that
making major changes to CACFP
nutrition requirements to ‘‘streamline’’
work for schools is ‘‘a mistake’’ and
recommended USDA further engage the
CACFP community prior to finalizing
the proposed breakfast cereal and yogurt
added sugars limits in CACFP. This
respondent added that CACFP providers
use other Federal assistance programs,
rather than school meals, as their point
of reference. Another advocacy group
noted that for breakfast cereals, the
proposed change from 6 grams of total
sugars per dry ounce to 6 grams of
added sugars per dry ounce would
effectively increase the total sugar
allowance. This respondent raised
concerns about children’s health and
did not support what they considered to
be a more lenient requirement. A State
agency suggested applying the current
CACFP total sugars limits for breakfast
cereals and yogurt to school meals,
instead of finalizing the proposed
changes.
Other respondents supported
applying the added sugars limits for
breakfast cereals and yogurt to CACFP.
An industry respondent supported
transitioning total sugars limits to added
sugars limits, arguing that it
‘‘appropriately reflects updated
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nutrition guidance.’’ A dietitian noted
that CACFP operators have successfully
implemented total sugars limits and
supported updating to added sugars
limits because added sugars are now
consistently listed on the Nutrition
Facts label. An advocacy group agreed,
suggesting that the updated Nutrition
Facts label provides the information
CACFP providers would need to select
products, adding that there are
numerous products in the marketplace
that meet the proposed added sugars
limits. Another advocacy group
suggested that applying the proposed
change to CACFP ‘‘will simplify
standards for both industry and program
operators.’’
A form letter campaign supported the
product-based limit for breakfast cereals
only if CACFP providers can continue to
use a list of allowable products
provided by the Women, Infant and
Children (WIC) Program to identify
breakfast cereals that are allowed in the
CACFP. Respondents explained that
each State agency administering the
WIC program provides a list of
allowable foods (WIC list) that meet
program nutrition requirements. A few
advocacy groups highlighted the
importance of the WIC list, with one
noting that the majority of CACFP
providers shop in retail stores and use
the WIC list to easily identify cereals
that meet CACFP total sugars
requirements. A State agency agreed,
describing the WIC list of approved
breakfast cereals as ‘‘an important
resource used by both the State agency
and CACFP sponsoring organizations.’’
An advocacy group also highlighted the
importance of collaboration between
CACFP and WIC, including shared
materials and messaging. An individual
suggested that USDA develop its own
‘‘approved list’’ of breakfast cereals and
yogurt that child care providers
participating in CACFP could use to
easily identify compliant products.
Respondents also offered additional
suggestions for how USDA could
support the CACFP community in
implementing the proposed changes, if
finalized. An advocacy group
recommended that USDA provide tools
and resources to help CACFP providers
identify allowable products. A CACFP
sponsoring organization encouraged
USDA to provide flexibility to operators
and sites as they transition from current
total sugars limits to the proposed
added sugars limits. An advocacy group
noted that CACFP sponsoring
organizations would need ample time to
retrain providers and suggested that
USDA provide additional funding to
support nutrition education, training,
and material revisions at the local level.
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Another advocacy group noted that
family child care providers often run
small programs where they take on
multiple roles including owner,
caregiver, meal preparer, and more. This
respondent suggested that child care
providers may need additional time to
implement the added sugars limits for
breakfast cereals and yogurt, noting that
the changes will require time, training,
money, and technical assistance.
However, a State agency suggested that
the proposed rule would provide
adequate lead time for CACFP operators
to successfully implement the changes,
noting that the State would have time to
train sponsoring organizations and
update technical assistance resources.
However, the State agency
recommended that USDA implement
the CACFP changes at the beginning of
the fiscal year, rather than the beginning
of the school year, to match the start of
the CACFP program year.
Proposed Approach: Weekly Limits
Over 76,000 respondents, including
114 unique comments, supported a
weekly added sugars limit in the school
lunch and breakfast programs—the
second step of USDA’s proposal to
reduce added sugars. A dietitian
supported the weekly limit, stating that
it gives ‘‘menu planners creative
freedom’’ to develop a menu that
incorporates foods that are currently
available in the K–12 market. Another
respondent explained that the weekly
limit would give schools flexibility to
occasionally offer foods that are higher
in added sugars, provided they are
balanced with foods that are lower in
added sugars throughout the week.
Some respondents supported a
weekly limit only and did not support
the product-based limits. For example,
an advocacy group suggested that a
weekly limit would be easier to monitor,
require less training, and provide more
flexibility for operators, while still
reducing overall intake of added sugars.
This respondent suggested that all foods
can fit into a healthy diet, just in
different amounts and frequencies. An
industry respondent also supported the
weekly limit only, claiming that
product-based limits would cause
additional burden to monitor and limit
student choice, which could reduce
participation. Another industry
respondent agreed, suggesting that a 10
percent weekly limit in lunch and
breakfast programs provides flexibility
for operators, maintains options for
students, and gives manufacturers time
to reformulate. This respondent argued
that the product-based limits would
‘‘reduce opportunities for whole grain
intake’’ due to the limitation of popular
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grains items that contain added sugars,
such as granola bars. A school district
indicated that the weekly limit would
be easier to implement and track and
allow schools to decide ‘‘where to
spend’’ their added sugars in lunch and
breakfast menus. An advocacy group
supported the weekly limit and
suggested the two-step approach would
‘‘cause a lot of confusion and be
difficult to manage and document.’’
Forty-eight respondents opposed the
weekly limit, the majority of which
were unique comments. A school
district argued that the weekly limit
would ‘‘significantly increase
administrative burden.’’ A State agency
agreed, citing specific concern about the
potential burden on small, rural districts
that do not use menu planning software
and may not have the staff capacity to
calculate additional dietary
specifications. An industry respondent
suggested that a weekly limit may
‘‘inadvertently lower the amount of
yogurt and dairy’’ offered in school
meals, which they asserted could
decrease ‘‘the nutritiousness of meals.’’
Two-Step Approach: Product-Based and
Weekly Limits
Some respondents supported both
steps of USDA’s phased-in approach to
reduce added sugars in school meals
and emphasized the importance of the
product-based and weekly limits. An
advocacy group strongly supported both
proposals, noting that product-based
limits alone would not achieve dietary
recommendations for added sugars. This
respondent emphasized the importance
of implementing a weekly limit, while
also pointing out the benefits of
product-based added sugars limits—
particularly for foods that are commonly
served in school meals. A professional
association also supported the two-step
approach, suggesting that it would allow
‘‘schools, food manufacturers, and
distributors time to learn and adapt.’’
An advocacy group supported both
added sugars proposals, but
acknowledged that between the two, a
weekly limit would be ‘‘more effective’’
to meet the Dietary Guidelines
recommendations. Another advocacy
group described USDA’s two-step
approach as ‘‘balanced and practical’’
and supported phasing in the productbased limits, followed by the weekly
limit. A group of Federal elected
officials applauded USDA’s proposed
‘‘gradual, phased-in approach’’ to
reducing added sugars in school meals.
An advocacy group added that the
‘‘combination of product-based and
weekly limits are especially important’’
given children’s current, excessive
intake of added sugars.
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Proposed Implementation Timeframes
Over 300 respondents addressed the
proposed implementation timeframes,
including 96 unique comments. Several
respondents suggested that USDA
provide schools and industry more time
for implementation. A dietitian and a
school nutrition director asserted that
the product-based limits do not provide
manufacturers enough lead time and
emphasized that reformulating products
takes time and money. A school district
stated that they ‘‘have faith’’ that
manufacturers can reduce added sugars
over time and students will adapt, but
they do not think two years is adequate.
This respondent was concerned about
the potential impact on student
participation, noting the importance of
providing breakfast cereals and other
food items that students enjoy. A
respondent who supported the
proposals expressed concern that the
implementation timeline may not be
long enough for small or rural school
districts that rely on smaller food
distributors. One State agency
conducted a survey of child nutrition
directors and NSLP stakeholders and
found that 75 percent of respondents
did not feel the proposed
implementation dates were sufficient
due to limited product availability,
supply chain challenges, and student
acceptance.
A dietitian recommended lengthening
the implementation timeline and
providing funding to manufacturers.
This respondent was concerned that
manufacturers would ‘‘quit the K–12
segment if they cannot comply’’ with
the limits. An industry respondent
argued that, if manufacturers do not
have additional lead time, student
participation may decrease due to
‘‘inadequate options.’’ This respondent
added that ‘‘the school nutrition
ecosystem is simply too fragile’’ to
follow the proposed timeline. A joint
response from three industry
respondents argued that the proposed
implementation dates would not
provide enough time for reformulation
that ensures product quality and safety,
given the functional role sugar plays as
an ingredient (e.g., preventing spoilage,
improving texture, and adding bulk).
This response raised concerns about
student acceptability, student
participation, and food waste under the
proposed implementation timeline. A
dietitian suggested that if manufacturers
are not able to create products to meet
the proposed product-based limits, then
the implementation dates should be
delayed.
An industry respondent maintained
that added sugar reductions must be
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tailored for each individual product,
suggesting that timelines can range from
12 to 16 months. This respondent added
that schools typically solicit bids for
products one year in advance, adding at
least 12 months to the process. This
industry respondent noted that
additional time for implementation
would allow schools to update meal
planning databases, provide time to
develop menu planning tools, and help
students gradually adjust to foods
containing less added sugars. A State
agency relayed that manufacturers have
expressed that SY 2027–2028 would be
a more realistic timeframe to implement
breakfast cereal and yogurt limits. An
advocacy group acknowledged that
timelines for research and development
vary and suggested that K–12 food
companies typically report needing 3
years to reformulate products. A State
agency also recommended providing at
least 3 years after release of the final
rule to allow adequate time to update
trainings, materials, product
formulations, and school menus. An
individual suggested that industry
would need a minimum of 3–5 years to
reformulate or develop food items that
meet the proposed limits. A State
agency and an industry respondent
expected product reformulation to take
up to 5 years. Another industry
respondent asserted that the proposed
implementation dates for added sugars
are too short and suggested the
reductions occur more gradually over
the next 20 years or more.
Other respondents suggested the
proposed implementation timeframes
were adequate, and some recommended
accelerating timeframes in the interest
of children’s health. An advocacy group
affirmed that phased-in implementation
would allow adequate time to
implement the new requirements.
Another advocacy group recommended
implementing the weekly added sugars
limit alongside the product-based limits
in SY 2025–2026. A State agency also
suggested implementing the productbased limits and the weekly limit at the
same time, suggesting that 12–18
months would be a reasonable amount
of time for industry and schools to
prepare for changes. A parent suggested
implementing the added sugars limits
on a quicker timeframe, suggesting that
the limits ‘‘need to happen now’’ due to
what they consider to be an excessive
amount of sugar in school meals. An
advocacy group agreed, suggesting that
USDA implement the added sugars
limits ‘‘as soon as is feasible,’’ noting
that these updates will be beneficial to
children’s health. Similarly, a second
advocacy group stated that USDA
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should implement the weekly limit in
the school year immediately following
release of the final rule. A local
government supported both added
sugars limits and the proposed
implementation timeline; this
respondent did not recommend
extensions ‘‘due to the urgency needed
in reducing consumption of added
sugars among children.’’ An advocacy
group and a few individuals asserted
that ‘‘there is no credible reason for
USDA to delay achieving the reduction
in sugar consumption,’’ requesting
implementation of the added sugars
limits by fall 2023.
A school nutrition professional
suggested that the proposed
implementation date for the productbased limits would provide ‘‘plenty of
time’’ but claimed the weekly limit
would be ‘‘much harder’’ to achieve.
This respondent noted that many rural
districts currently do not have nutrition
software to facilitate implementation of
a weekly limit for added sugars.
Similarly, a dietitian suggested that the
implementation date for product-based
limits is achievable, provided that the
final rule is published at least one year
in advance of implementation (by July
1, 2024). The respondent suggested that
this timing would allow USDA and
State agencies to provide technical
assistance and training. However, this
respondent recommended delaying
implementation of the weekly added
sugars limit to allow additional time for
product reformulation and menu
revisions.
One respondent encouraged USDA to
remove the product-based limits and
implement the weekly limit no later
than 2025. By accelerating
implementation of the weekly limit in
school lunch and breakfast programs,
this respondent suggested USDA could
support healthier meals for children
who are currently in school. An
industry respondent also recommended
removing the product-based limits
while maintaining the proposed
implementation of SY 2027–2028 for the
weekly limit.
Alternative Approaches Suggested by
Comments
Some respondents offered alternatives
to the proposals, or suggested changes.
For example, an industry respondent
suggested that USDA determine the
product-based limits using the average
added sugars content of currently
available products. A professional
organization recommended that USDA
establish total sugars limits, rather than
added sugars limits, for breakfast cereals
and yogurt because of the naturally
occurring sugar content of those foods.
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An individual suggested that USDA
reduce sugar content in school breakfast
by following Smart Snacks in School
requirements for sugar.38 A few
advocacy groups suggested USDA
require or recommend product-based
limits for condiments and toppings,
noting that these products contribute to
children’s intake of added sugars,
especially at breakfast.
Some respondents suggested
alternatives to the proposed limit on
grain-based desserts in school
breakfasts. A professional organization
and another respondent suggested that
USDA prohibit (rather than limit) grainbased desserts in the school meal
programs to promote more nutrient
dense foods. A State agency
recommended phasing in the grainbased dessert limit by age/grade group,
starting with K–5 children. This State
agency suggested this could help
prevent a drastic drop in participation
among older students. A school
nutrition professional suggested that
grain-based desserts should not be
defined by the product name, but by the
amount of added sugars in the product.
An advocacy group also encouraged
USDA to establish a quantitative added
sugars limit for grain-based desserts and
suggested further reducing the proposed
added sugars limit for breakfast cereals.
An industry respondent suggested
that if yogurt and flavored milks are
subject to product-based limits, they
should be excluded from the overall
weekly limit. This respondent expressed
concern that counting yogurt and
flavored milks in the overall weekly
limit could create ‘‘perverse and
unintended incentives’’ to remove these
items from meals. Another industry
respondent suggested that USDA
exempt the added sugars in dried
cranberries from the weekly added
sugars limit. This respondent argued
that not providing an exemption for
cranberry products could discourage the
consumption of products like
cranberries that include added sugar for
processing and palatability.
A few respondents offered alternative
suggestions for the weekly added sugars
limit. For example, a school nutrition
director suggested starting with a higher
weekly dietary specification, such as 15
percent, and adjusting the percentage
down as needed. This respondent stated
that a more gradual approach for the
weekly limit would mirror the proposed
sodium reductions. Similarly, an
advocacy group recommended removing
the product-based limits and instead,
gradually phasing in the weekly limit
38 Regulations for competitive food service and
standards are found at 7 CFR 210.11.
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for lunch and breakfast meals. This
respondent recommended starting in SY
2025–2026 with a dietary specification
limiting meals to less than 25 percent of
calories from added sugars, and then
implementing a 10 percent limit in SY
2027–2028. A school district supported
finalizing a 25 percent weekly limit in
SY 2026–2027 and did not recommend
further reductions. Another school
district recommended a weekly dietary
limit of 35 percent of calories from
added sugars, with no product-based
limits, beginning SY 2025–2026.
However, an advocacy group stated
that USDA ‘‘should reject any calls to
set a limit higher than 10 percent’’
because most children would benefit
from a diet with even fewer added
sugars, as low as 4 to 8 percent. Another
respondent argued that the proposed 10
percent limit is ‘‘still very high.’’ An
advocacy group agreed, recommending
that USDA take ‘‘swifter and more farreaching action’’ by implementing a 6
percent weekly limit for added sugars.
A local government recommended that
USDA apply the limit to both meals
together (breakfast and lunch) instead of
applying the 10 percent weekly limit to
each meal separately. This respondent
suggested this would increase the
feasibility of implementation, since
breakfast foods typically contribute
larger amounts of added sugars. A
school nutrition professional suggested
incentivizing—but not requiring—
schools to meet the 10 percent weekly
limit.
Several respondents, including a
national organization representing tens
of thousands of school nutritional
professionals, recommended that USDA
make it easier for schools to offer meats/
meat alternates in place of grains at
breakfast, which they argued would
support reducing added sugars in school
breakfasts. This includes options
suitable for grab-and-go breakfast, such
as protein-rich breakfast sandwiches
and wraps. A school district suggested
many schools ‘‘would love to be able to
offer eggs and sausage, or fruit and
yogurt parfaits for breakfast,’’ and
requested that USDA remove the
requirement to offer a minimum amount
of grains daily for breakfast. A dietitian
recommended that USDA require a
meat/meat alternate at breakfast. A few
industry respondents maintained that
the added sugars limit would ‘‘create a
drive in the market to increase the
protein content of breakfast items,’’
noting that the current grain minimum
and cost constraints present a barrier to
offering meats/meat alternates at
breakfast. Additional comments on this
topic, received in response to a prior
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rulemaking, can be found in Section 6:
Meats/Meat Alternates at Breakfast.
Other Comments About Added Sugars
Respondents also submitted other
comments about added sugars,
including comments related to
sweeteners, which respondents used a
variety of terms to describe. A school
nutrition professional raised concerns
that manufacturers would replace added
sugars with ‘‘artificial sweeteners’’
when reformulating products to meet
the proposed limits. Similarly, a
dietitian stated that while they support
reducing added sugars, food
manufacturers would face challenges to
meet this requirement without using
‘‘sugar substitutes.’’ A school nutrition
professional suggested prohibiting
‘‘non-caloric sweeteners (both natural
and artificial)’’ in school meals, noting
that there is limited research on their
long-term effects and expressed concern
these additives may cause stomach
problems in young children. An
individual voiced similar concerns
about ‘‘low calorie sweeteners’’ and
suggested prohibiting or labeling
products so that parents or students can
avoid those food items, if desired.
A school district requested that the
added sugars limits be accompanied by
an increase in reimbursement rates. This
respondent anticipated an increase in
product costs as added sugars are
replaced with more expensive and
healthier ingredients. One industry
respondent also shared financial
concerns, suggesting that schools would
need to adjust menus by adding food
items or increasing portion sizes to meet
calorie ranges if added sugars are
reduced. This respondent suggested one
solution to this challenge would be to
increase Federal funding. Another
industry respondent described the
‘‘chronic underfunding of school
breakfasts’’ and encouraged adequate
resources to facilitate schools offering
nutritious breakfast items, such as fresh
fruits and vegetables. Although this
respondent acknowledged their
comment was outside the scope of this
rulemaking, they emphasized that
funding plays an important role in the
types of foods that schools can offer
students.
A few advocacy groups encouraged
USDA to provide sufficient time, menu
planning resources, and technical
assistance to support implementation of
the added sugars limits. Specifically,
some respondents suggested USDA
update its Team Nutrition resources for
reducing sugars in CACFP, if this
requirement is finalized. A State agency
requested that USDA update
Administrative Review guidance and
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assessment tools, along with guidance
on how schools can assess compliance
with the weekly limit. An advocacy
group recommended that, during
implementation, schools should not be
penalized and suggested that USDA
prioritize additional technical assistance
and training for schools that are
struggling with compliance. A State
agency provided similar input,
suggesting that USDA provide schools a
‘‘grace period’’ for corrective actions
during the first Administrative Review
cycle, following implementation of the
added sugars limits.
Final Rule
This final rule codifies the proposed
added sugars limits in the school lunch
and breakfast programs, as follows:
• Product-based limits: By SY 2025–
2026, schools must implement
quantitative limits for breakfast cereals,
yogurt, and flavored milks. As
explained below, this rule does not
finalize the proposed product-based
limit for grain-based desserts at
breakfast. The product-based limits that
are finalized in this rule are as follows:
• Breakfast cereals are limited to no
more than 6 grams of added sugars per
dry ounce.
• Yogurt is limited to no more than
12 grams of added sugars per 6 ounces
(2 grams of added sugars per ounce).
• Flavored milk is limited to no more
than 10 grams of added sugars per 8
fluid ounces. Flavored milk sold as a
competitive food for elementary school
students will follow the 10 grams of
added sugars per 8 fluid ounce limit,
while flavored milk sold as a
competitive food for middle and high
school students will be limited to 15
grams of added sugars per 12 fluid
ounces.39
• Weekly dietary limit: By SY 2027–
2028, schools must implement a dietary
specification limiting added sugars to
less than 10 percent of calories per week
in the school lunch and breakfast
programs; this weekly limit will be in
addition to the product-based limits
described above.
As proposed, this final rule also
updates CACFP total sugar limits for
breakfast cereals and yogurt to align
with the product-based added sugars
limits established for NSLP and SBP as
stated above. Because CACFP operates
39 For clarification, the added sugars limit for
flavored milk sold as a competitive food in middle
and high schools due to the larger serving size. The
serving size for milk offered as part of a
reimbursable meal is 8 fluid ounces. Milks sold to
middle and high school students as a competitive
food may be up to 12 fluid ounces. Milks sold to
elementary school students as a competitive food
may be up to 8 fluid ounces, and so will follow the
10 grams of added sugars per 8 fluid ounce limit.
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on a fiscal year calendar, these changes
must be implemented by October 1,
2025. For CACFP, the product-based
added sugars limits are as follows:
• Breakfast cereals are limited to no
more than 6 grams of added sugars per
dry ounce.
• Yogurt is limited to no more than
12 grams of added sugars per 6 ounces
(2 grams of added sugars per ounce).
The existing total sugars limits for
breakfast cereals and yogurt in CACFP
will remain in place until October 1,
2025, when the new added sugars limits
must be implemented. With State
agency approval, CACFP operators may
choose to implement the added sugars
limits for breakfast cereals and yogurt
early.
Two-Step Approach To Reduce Added
Sugars in School Meals
USDA is committed to improving the
nutritional quality of school meals by
establishing requirements that align
with the goals of the most recent Dietary
Guidelines. USDA also acknowledges
stakeholders’ concerns about added
sugars in school meals and the harmful
effects on children’s health. The twostep approach to reducing added sugars
finalized in this rule is expected to set
schools up for success by gradually
decreasing added sugars over the next
several years. USDA acknowledges that,
as noted in public comments, program
operators need sufficient time to prepare
and plan menus to meet the new added
sugars limits. By first phasing in the
product-specific limits for breakfast
cereals, yogurt, and flavored milk,
USDA expects that schools will be
better positioned to successfully meet
the weekly limits for added sugars,
which will take effect two school years
after the effective date of the productbased limits.
USDA intends for the product-based
limits for breakfast cereals, yogurt, and
flavored milk to have a meaningful
impact on the added sugars offered in
school meals. However, USDA
recognizes that there are other foods
offered in school meals that contribute
to children’s overall intake of added
sugars, which makes the weekly dietary
limit an important second step to align
school meals more closely with the
goals of the Dietary Guidelines. For
example, USDA expects that added
sugars in condiments and toppings will
be addressed through the weekly added
sugars limit, upon implementation.
While USDA appreciates public
comments recommending productbased limits for condiments and
toppings, such limits were not included
in the proposed rule and this final rule
does not establish product-based added
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sugars limits for these items. USDA
expects that the overall weekly limit
will help to reduce the amount of added
sugars offered in condiments and
toppings. Additionally, although this
rule does not finalize the grain-based
dessert limit at breakfast, USDA expects
that schools will select grains with less
added sugars to meet the weekly added
sugars limit at breakfast and, as
explained below, USDA will provide
resources to support more nutrientdense choices at breakfast. USDA is also
interested in additional stakeholder
input on how to improve and simplify
its grain-based desserts requirements
and will solicit stakeholder input on
grain-based desserts in the coming
months.
USDA also acknowledges respondent
concerns regarding the palatability of
meals with less added sugars and
related concerns about plate waste and
student participation. However, USDA
expects that gradually phasing in these
requirements will give schools time to
adjust menus and help children
gradually adapt to meals with fewer
added sugars over time.
recognizes that many stakeholders
would like more consistent
requirements across child nutrition
programs; this final rule supports
USDA’s efforts to better align program
requirements. Additionally, in response
to public comments, USDA clarifies that
the per-ounce limit for yogurt will be 2
grams of added sugars. While this
clarification applies to NSLP, SBP, and
CACFP, it is most relevant to CACFP,
where smaller portions may be offered
to younger participants and operators
will more often need to assess
compliance with the added sugars limit
in serving sizes that are smaller than 6
ounces.
CACFP operators provide vital
nutrition that contributes to the
wellness of child and adult participants.
USDA recognizes and appreciates the
important role CACFP operators play in
helping child and adult participants
develop and sustain healthy habits in all
stages of life. USDA is committed to
ensuring that CACFP operators have the
technical assistance and resources they
need to be successful, including
implementing the changes in this rule.
Added Sugars in the Child and Adult
Care Food Program
For consistency, this final rule applies
the product-based added sugars limits
for breakfast cereals and yogurt to the
CACFP. Based on public comment,
USDA has adjusted the implementation
date for CACFP to follow the program
calendar, which operates on a fiscal year
rather than a school year. Effective
October 1, 2025, the added sugars limits
will replace the current total sugar
limits for breakfast cereals and yogurt in
CACFP. The existing total sugars limits
for breakfast cereals and yogurt in
CACFP will remain in place until
October 1, 2025, when the new added
sugars limits take effect. However, with
State agency approval, CACFP operators
may choose to implement the added
sugars limits for breakfast cereals and
yogurt early.
As mentioned in public comments,
CACFP operators have successfully
implemented product-based sugar
limits, and this rule updates these limits
from total sugars to added sugars based
on Dietary Guidelines
recommendations. Although some
public comments recommended
continuing with total sugars limits, that
approach would not be consistent with
the Dietary Guidelines
recommendations. And, as noted, added
sugars information is now available on
the Nutrition Facts label.40 USDA
Alignment With WIC Food Package
Standards
In April 2024, USDA finalized
revisions to the WIC food packages to
incorporate recommendations from the
National Academies of Science,
Engineering, and Medicine (NASEM) in
its 2017 scientific report, ‘‘Review of
WIC Food Packages: Improving Balance
and Choice,’’ and to align the food
packages with the Dietary Guidelines for
Americans, 2020–2025. The WIC final
rule, Special Supplemental Nutrition
Program for Women, Infants and
Children (WIC): Revisions in the WIC
Food Packages,41 updated limits on
total sugars, consistent with
recommendations in the NASEM report.
This included establishing limits on
added sugars in breakfast cereals and
yogurt that are consistent with the limits
in this final rule. CACFP operators may
use any State’s WIC list to identify
breakfast cereals and yogurt that may be
offered in CACFP. Both the WIC final
rule and this final rule share the
common goal of reducing added sugars
intake among child and adult
participants and promoting healthy
dietary patterns. This cross-program
alignment of product-based limits for
40 Food Labeling: Revision of the Nutrition and
Supplement Facts Labels (81 FR 33741, May 27,
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2016). Available at: https://www.federalregister.gov/
documents/2016/05/27/2016-11867/food-labelingrevision-of-the-nutrition-and-supplement-factslabels. See also: 21 CFR 101.9(c)(6)(iii).
41 Special Supplemental Nutrition Program for
Women, Infants, and Children (WIC): Revisions in
the WIC Food Packages (April 2024). Available at:
https://www.fns.usda.gov/wic/fr-041824.
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breakfast cereals and yogurt responds to
public comments that highlighted the
benefits of allowing use of the WIC list
in CACFP by allowing CACFP providers
to use the WIC list to identify allowable
breakfast cereals and yogurt. It also
responds to public feedback requesting
that USDA streamline requirements
across its nutrition assistance programs.
Additional Feedback Received in Public
Comments
USDA appreciates public comments
on alternative approaches for reducing
added sugars in school meals. A few
respondents suggested a stepwise
approach for the weekly added sugars
limit; for example, by starting with 15
percent and then moving to a 10 percent
weekly limit. The intent of the productbased limit is to provide schools with a
path toward reaching the 10 percent
weekly limit. Other respondents
recommended a weekly limit below 10
percent; however, a weekly limit below
10 percent would go beyond
recommendations in the current Dietary
Guidelines. In this final rule, USDA
maintains the proposed weekly added
sugars limit of 10 percent of calories per
week, averaged over the week for lunch
and breakfast programs, respectively. In
public comments, some respondents
recommended combining lunch and
breakfast menus under the weekly limit.
However, because other school meal
pattern requirements (including the
other dietary specifications for calories,
saturated fat, and sodium) currently
apply by program, USDA does not view
this as an operationally feasible
suggestion. Regarding exemption for
certain foods from the weekly limit,
USDA has determined that establishing
exemptions may impose unintended
burden and challenges in calculating
and monitoring dietary specifications
for the entire menu. This final rule does
not exempt any foods from the weekly
added sugars limit for school lunch or
breakfast. USDA also acknowledges
comments that recommended adjusting
other meal pattern requirements, such
as the calorie limits, as part of this
change. However, USDA did not
propose changes to the calorie limits in
school meals and this final rule does not
make changes to the calorie limits for
school meals.
Product-Based Limits for Breakfast
Cereals, Yogurt, and Flavored Milk
USDA received hundreds of
comments regarding the product-based
limits for breakfast cereals, yogurt, and
flavored milks. For example, some
respondents recommended increasing
the product-based added sugars limit for
breakfast cereals and raised concerns
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about the availability of breakfast
cereals that meet the proposed limit that
children enjoy. Similarly, USDA
acknowledges respondent concerns
about product availability and the
palatability of yogurt and flavored milks
that meet the product-based added
sugars limits. However, USDA agrees
with respondents who stated that the
added sugars limits are realistic and that
many breakfast cereals, yogurts, and
flavored milks that meet the final limits
are or will be available to schools. As
discussed in the Regulatory Impact
Analysis, based on data that USDA
collected in 2022, 50 percent of
breakfast cereals and 57 percent of
yogurts already met the added sugars
limits finalized in this rule in 2022.42
Regarding flavored milk, as noted in
public comments, the milk industry has
committed to reducing added sugars in
flavored milk to levels that meet the
limits finalized in this rule.43 USDA
appreciates public comments from
industry that noted significant progress
in product reformulation and a variety
of products available in the market that
already meet the product-based limits
finalized in this rule. Additionally, the
gradual, phased-in approach used in
this rule will provide schools time to
implement the changes.
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Product-Based Limit for Grain-Based
Desserts at Breakfast [Not Finalized]
As noted above, USDA is not
finalizing the proposed limit for grainbased desserts at breakfast. Public
comments raised concerns about
potential negative impacts of the
proposal to the SBP, especially to
alternative breakfasts that often contain
grab-and-go friendly items, including
grain-based desserts such as breakfast
bars and toaster pastries. Respondents
were concerned about the availability
and student acceptance of alternative
42 USDA Food and Nutrition Service, Office of
Policy Support data collection of nutrition label
information from major cereal and yogurt
manufacturer K–12 and food service catalogs. Data
were collected on 191 total cereal products and 110
total yogurt products.
43 In April 2023, the International Dairy Foods
Association announced its ‘‘Healthy School Milk
Commitment.’’ According to a press release from
the International Dairy Foods Association,
‘‘[b]eginning with the 2025–2026 school year, 37
school milk processors representing more than 90%
of the school milk volume in the United States
commit to provide healthy, nutritious school milk
options with no more than 10 grams of added sugar
per 8 fluid ounce serving.’’ See: International Dairy
Foods Association. IDFA Announces ‘Healthy
School Milk Commitment’ to Provide Nutritious
Milk with Less Added Sugar for Students in Public
Schools, Surpassing USDA Standards. April 5,
2023. Available at: https://www.idfa.org/news/idfaannounces-healthy-school-milk-commitment-toprovide-nutritious-milk-with-less-added-sugar-forstudents-in-public-schools-surpassing-usdastandards.
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items that can readily be served in graband-go and other alternative breakfast
models. In addition, many respondents
raised questions about the definition of
grain-based desserts as currently used in
the NSLP and CACFP 44 or suggested
alternative approaches to current
requirements for those programs. Under
current requirements, which define
grain-based desserts by product type,
some grain items that are not classified
as grain-based desserts are higher in
added sugars than items that are
classified as grain-based desserts. Some
respondents suggested that rather than
defining grain-based desserts by product
type, USDA should instead define grainbased desserts based on the amount of
added sugars in specific products. For
these reasons, many respondents
recommended that USDA reconsider the
proposal. Therefore, in response to
stakeholder input, USDA is not
finalizing the grain-based dessert limit
for school breakfast.
USDA is committed to supporting
alternative breakfast models, such as
breakfast in the classroom and grab-andgo breakfast, which support student
participation 45 by making school
breakfast more accessible. USDA also
appreciates concerns that the current
definition of ‘‘grain-based dessert’’ does
not target grain products high in added
sugar as effectively as possible.
Although some respondents raised
concerns about product-based limits for
breakfast cereals, yogurt, and flavored
milk, those comments did not cite
operational constraints for alternative
breakfast models under the proposed
limits. Further, as detailed above, USDA
has determined adequate products will
be available to meet the product-based
limits for breakfast cereals, yogurt, and
flavored milk finalized in this rule upon
implementation.
USDA recognizes that reducing grain
items that are high in added sugars is
one important strategy to support the
phased-in implementation of the weekly
added sugars limit. USDA will continue
44 For NSLP, according to 7 CFR
210.10(c)(2)(iii)(C) (previously 7 CFR
210.10(c)(2)(iv)(C), schools may count up to two
ounce equivalents of grain-based desserts per week
toward meeting the grains requirement at school
lunch. For CACFP, according to 7 CFR
226.20(a)(4)(iii), grain-based desserts do not count
toward meeting the grains requirement. The grainbased dessert requirements for NSLP and CACFP
remain in effect under this final rule.
45 Amelie A. Hecht, Deborah A. Olarte, Gabriella
M. McLoughlin, Juliana F.W. Cohen, Strategies to
Increase Student Participation in School Meals in
the United States: A Systematic Review, Journal of
the Academy of Nutrition and Dietetics, Volume
123, Issue 7, 2023, Pages 1075–1096.e1, ISSN 2212–
2672, https://doi.org/10.1016/j.jand.2023.02.016.
Available at: https://www.sciencedirect.com/
science/article/pii/S221226722300103X.
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31979
to support implementation of alternative
breakfast models by highlighting
popular grain items that are low in
added sugars and that are grab-and-go
friendly. Schools may also consider
offering savory grab-and-go breakfast
items, such as breakfast sandwiches and
wraps, to reduce the overall added
sugars content of school breakfasts. As
discussed in Section 6: Meats/Meat
Alternates at Breakfast, this rule
removes the minimum grains
requirement at breakfast, making it
easier for schools to offer meats/meat
alternates at breakfast. In the absence of
a grain-based dessert limit at breakfast,
schools may need additional support
and guidance to reduce added sugars at
breakfast and meet the weekly limit
upon implementation in SY 2027–2028.
As discussed below, USDA will
provide technical assistance to ensure
that schools have the resources they
need to reduce added sugars at
breakfast, including meeting the weekly
added sugars limit at breakfast upon
implementation. USDA also seeks to
support industry in producing breakfast
grains which can be part of menus
under the weekly added sugars limit.
The Department will provide voluntary
guideposts for schools and industry to
use to assist them in transitioning to the
weekly added sugars limits in SY 2027–
2028. This will include resources that
schools may use to identify grain items
that are low in added sugars.
USDA is very interested in and will
solicit additional stakeholder input on
improving guidance around grain-based
breakfast items. As part of this effort,
USDA will seek stakeholder input on
the current grain-based desserts
requirements, alternative approaches to
defining and identifying grains that are
high in added sugars, and other creative
ideas for how to address grain-based
desserts in the child nutrition programs.
USDA looks forward to receiving
stakeholder feedback on this topic in the
coming months.
Sweeteners
This final rule is focused on limits for
added sugars, not other sweeteners used
as sugar substitutes or sugar
alternatives. USDA acknowledges
respondent concerns regarding
sweeteners in child nutrition programs,
referred to in public comments in a
variety of ways, including ‘‘artificial
sweeteners,’’ ‘‘non-nutritive
sweeteners,’’ and ‘‘sugar substitutes.’’ 46
46 Although respondents used a variety of terms
in public comments, USDA will refer to
‘‘sweeteners’’ in this final rule, consistent with FDA
terminology. U.S. Food and Drug Administration,
How Sweet It Is: All About Sweeteners, June 9, 2023.
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Sweeteners, like all other ingredients
added to food in the U.S. food supply,
must be safe for consumption under the
Federal Food, Drug and Cosmetic Act.47
FDA determines if food additives, such
as sweeteners, are safe for their intended
use. FDA has approved six sweeteners
as food additives through an extensive
evidence-based research process.48 In
addition to the six sweeteners approved
as food additives, there are three
additional sweeteners that are Generally
Recognized as Safe (GRAS). USDA relies
on FDA expertise to safeguard the food
supply because FDA is the Federal
agency responsible for assessing the
safety of food additives, food
ingredients, and sweeteners, including
artificial sweeteners and nonnutritive
sweeteners. Therefore, under this final
rule, there are no restrictions on
sweeteners in school meals, such as the
use of sugar substitutes and
nonnutritive sweeteners; this approach
aligns with current FDA guidance for
sweeteners. However, at the local level,
schools or districts may opt to limit or
remove sweeteners from their school
lunch and breakfast menus, which
USDA recognizes that some localities
have chosen to do. Further, in response
to stakeholder concerns about
sweeteners, in upcoming studies, USDA
will include questions regarding school
policies relating to the use of sweeteners
in school meals and will continue to
monitor FDA research and guidance on
this issue.
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Ongoing Support
USDA is committed to ensuring that
child nutrition program operators have
ongoing support and will provide
additional technical assistance and
resources to assist schools and child
care institutions and facilities as they
prepare to implement and monitor new
or updated requirements. USDA
appreciates public comments requesting
guidance and support for monitoring
these changes and will update the
nutrient analysis software approved for
use in Administrative Reviews so that it
includes a dietary specification for
Available at: https://www.fda.gov/consumers/
consumer-updates/how-sweet-it-all-aboutsweeteners.
47 U.S. Food and Drug Administration, Aspartame
and Other Sweeteners in Food, July 14, 2023.
Available at: https://www.fda.gov/food/foodadditives-petitions/aspartame-and-othersweeteners-food.
48 Amelie A. Hecht, Deborah A. Olarte, Gabriella
M. McLoughlin, Juliana F.W. Cohen, Strategies to
Increase Student Participation in School Meals in
the United States: A Systematic Review, Journal of
the Academy of Nutrition and Dietetics, Volume
123, Issue 7, 2023, Pages 1075–1096.e1, ISSN 2212–
2672, https://doi.org/10.1016/j.jand.2023.02.016.
Available at: https://www.sciencedirect.com/
science/article/pii/S221226722300103X.
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added sugars. As noted above, USDA
will provide resources to support
schools and industry in transitioning to
the weekly added sugars limit in SY
2027–2028 and will make these
resources available in time to support
procurement for SY 2025–2026. USDA
has already highlighted strategies that
schools can use to reduce added sugars
in Best Practices for Reducing Added
Sugars at School Breakfast.49 For
example, schools can:
• Reduce how often high-sugar foods
and beverages are offered during the
week.
• Use fruit to sweeten smoothies and
yogurt instead of added sugars.
• Use cinnamon, vanilla, and other
spices or extracts to enhance recipes
with less added sugars.
In public comments, many
respondents suggested that meats/meat
alternates be allowed in place of grains
to help reduce added sugars in
breakfasts. As discussed in Section 6:
Meats/Meat Alternates at Breakfast,
schools may consider this option as a
strategy to reduce added sugars at
breakfast, since some grain foods
commonly offered in school breakfasts
tend to be higher in added sugars.
Schools now have the option to offer
grains, meats/meat alternates, or a
combination of both, to meet the
combined food component requirement
in the SBP. This change gives program
operators greater flexibility in menu
planning and increases the variety of
food items that can be served at school
breakfast, helping to address respondent
concerns about meeting the added
sugars limits at breakfast. Local
educational agencies may also consider
updating their local school wellness
policies with strategies to reduce added
sugars in school meals and snacks.
USDA also commends industry efforts
to reduce added sugars in their
products, including in flavored milk.
For example, USDA understands that
flavored milk processors have already
reduced the average amount of added
sugars per serving of flavored milk since
announcing their ‘‘Healthy School Milk
Commitment’’ in April 2023.50 As
49 U.S. Department of Agriculture, Best Practices
for Reducing Added Sugars at School Breakfast,
August 4, 2022. Available at: https://
www.fns.usda.gov/tn/best-practices-reducingadded-sugars-school-breakfast.
50 According to the International Dairy Foods
Association, ‘‘When the Commitment was
announced in April 2023, flavored milk products
offered in schools contained an average of 8.2 grams
of added sugar per serving. By July 2023, the
average had fallen to 7.6 grams of added sugar per
serving.’’ See: International Dairy Foods
Association, School Milk Is Critical to Child
Nutrition—School Year 2023–2024. Available at:
https://www.idfa.org/wordpress/wp-content/
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suggested by comments, support from
industry is crucial to schools’ efforts to
continue to offer foods that are popular
with children and also fit within the
product-based and weekly limits phased
in under this rulemaking.
USDA acknowledges public
comments that requested increased
funding to support implementation of
the added sugars limits. USDA does not
have authority to increase the Federal
reimbursement rates for school meals.51
However, USDA launched the HMI
Initiative to improve the nutritional
quality of school meals through food
systems transformation, recognition,
and technical assistance; the generation
and sharing of innovative ideas and
tested practices; and grants. As part of
a cooperative agreement to develop and
implement USDA’s HMI Initiative,
AFHK is offering Recognition Awards
for school food authorities, including
the Breakfast Trailblazer Recognition
Award, that will recognize school food
authorities who implement specific
strategies to reduce added sugars in
school breakfast menus, implement an
alternative meal service delivery model
for breakfast, and use student
engagement techniques and/or culinary
techniques to prepare breakfasts that
students enjoy. Public comments noted
the importance of student preferences
and participation. Developing healthy
dietary patterns and taste preferences
begins at a young age, and gradually
decreasing added sugars in school meals
can contribute to developing student
preferences for more nutrient-dense
foods, with less added sugars, as
recommended by the Dietary
Guidelines. As part of the HMI
Initiative, AFHK will host Healthy
Meals Summits, where award recipients
and grantees will share best practices
and strategies for sustaining their
nutritional achievements, including
successful strategies to reduce added
sugars. The summits will celebrate and
showcase creative strategies for serving
healthy, appealing meals and the best
practices will serve as a blueprint for
school food authorities nationwide.
USDA will also share strategies and
success stories for reducing added
sugars in its communications materials
and will provide guidance and
resources to schools working to reduce
uploads/2023/09/Back-to-School-Milk-Fact-Sheet2023_2024.pdf.
51 The annual payments and rates adjustments for
the National School Lunch and School Breakfast
Programs reflect changes in the Food Away From
Home series of the Consumer Price Index for All
Urban Consumers. See: U.S. Department of
Agriculture. Rates of Reimbursement. Available at:
https://www.fns.usda.gov/cn/rates-reimbursement.
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added sugars in school meals in the
months ahead.
Assessing Impact of Added Sugars
Limits
USDA recognizes the importance of
monitoring progress toward the new
added sugars limits and assessing the
effectiveness of the two-step approach.
USDA has a long history of examining
the nutritional quality of school meals
through studies such as the School
Nutrition and Meal Cost Study and the
School Nutrition Dietary Assessment
Study series. The 2024–2025 National
School Foods Study will incorporate
added sugars into this assessment,
which is based on an extensive menu
survey, designed to determine the food
and nutrient content of school meals
and afterschool snacks, examine
compliance with nutrition
requirements, and understand the
characteristics of foods and beverages in
reimbursable meals.
These studies also assess actual
student dietary intake and overall diet
quality through 24-hour dietary recall
interviews. The 2024–2025 study will
establish a ‘‘baseline year’’ (SY 2024–
2025) for examining the impact of the
added sugars and sodium limits
included in this rulemaking.
In accordance with its commitment to
regularly monitor how consistent school
meals are with the goals of the Dietary
Guidelines, USDA conducts the School
Nutrition and Meal Cost Study on a fiveyear cycle, which will provide another
comprehensive assessment in SY 2029–
2030, after both the updated sodium
limits and added sugars limits have
been fully implemented.
However, to monitor progress and
provide data on the effectiveness of
product-based limits as a step toward
meeting the overall weekly added sugars
limit, USDA will invest in an additional
menu assessment in SY 2026–2027,
between the two School Nutrition and
Meal Cost Study cycles. This nationally
representative survey will focus on the
foods and beverages that make up
reimbursable meals and allow USDA to
examine the effect of the product-based
added sugars limits, which will take
effect in SY 2025–2026. Additionally,
this survey will allow USDA to estimate
both added sugars and sodium content
of reimbursable school meals.
Together these studies will provide
USDA with critical evidence about rule
implementation, effects, and potential
barriers and help monitor changes in
nutrient content of foods over time. This
data will provide invaluable insight into
school meal nutrient composition and
student dietary outcomes. In addition,
USDA will continue current practice of
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using existing data sources—such as the
National Health and Nutrition
Examination Survey—to periodically
examine other outcomes, including the
relationship between estimated school
meal program participation, diet quality,
indicators of nutrition and health, food
consumption patterns, and nutrient
intakes. This in turn can inform future
policy and rulemaking.
Accordingly, this final rule codifies
the product-based added sugars limits
for breakfast cereals, yogurt, and
flavored milk, and codifies the weekly
dietary specification for added sugars in
NSLP and SBP regulations found at 7
CFR 210.10(b)(2)(iii), (c), (d)(1)(iii),
(f)(3), and (h) and 220.8(b)(2)(iii), (c),
(d), and (f)(3). These amendments must
be implemented by July 1, 2025, except
for the weekly dietary specification,
which must be implemented by July 1,
2027. This final rule also replaces total
sugar limits for breakfast cereals and
yogurt with added sugars limits in
CACFP regulations found at 7 CFR
226.20(a)(4)(ii), (a)(5)(iii)(B), (b)(5), and
(c). The CACFP amendments must be
implemented by October 1, 2025.
Section 3: Milk
This section includes the following
sub-sections:
• Section 3A discusses requirements
for flavored milk in the NSLP, SMP,
SBP, and CACFP, and for milk sold a` la
carte (i.e., as a Smart Snack in School).
• Section 3B provides an overview of
comments that USDA received in
response to the proposed rule’s request
for input on fluid milk substitutes in the
child nutrition programs.
• Section 3C discusses the nutrient
requirements for fluid milk substitutes.
Section 3A: Flavored Milk
Current Requirement
The National School Lunch Act (42
U.S.C. 1758(a)(2)(i)) requires schools to
offer students a variety of fluid milk at
lunch; such milk must be consistent
with the most recent Dietary Guidelines.
The Child Nutrition Act (42 U.S.C.
1773(e)(1)(A)) requires school breakfasts
to meet the same terms and conditions
set forth for school lunches in the
National School Lunch Act (42 U.S.C.
1758), including the requirements for
fluid milk. Current regulations at 7 CFR
210.10(d)(1)(i), 220.8(d), and 210.11(m)
allow schools to offer fat-free and lowfat (1 percent fat) milk, flavored and
unflavored, in reimbursable school
lunches and breakfasts, and for sale a` la
carte. The current regulations also
require that unflavored milk be offered
at each school meal service. Fat-free and
low-fat milk, flavored and unflavored,
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31981
may also be offered to participants ages
6 and older in the SMP and CACFP (7
CFR 215.7a(a) and 226.20(a)(1)(iii)).
Lactose-free and reduced-lactose milk
meet the meal pattern requirements for
fluid milk (7 CFR 210.10(d)(1)(i),
215.7a(a), 220.8(d), and 226.20(a)(1)).
The current milk requirements took
effect on July 1, 2022.
Proposed Rule
USDA proposed the following two
alternatives for milk requirements in the
school lunch and breakfast programs
and invited public comment on both:
• Alternative A: Allow flavored milk
(fat-free and low-fat) at school lunch
and breakfast for high school children
only, effective SY 2025–2026. Under
this alternative, USDA proposed that
children in grades K–8 would be limited
to a variety of unflavored milk. USDA
also requested public input on whether
to allow flavored milk for children in
grades 6–8 as well as high school
children (grades 9–12). Children in
grades K–5 would again be limited to a
variety of unflavored milk. Under both
Alternative A scenarios, flavored milk
would be subject to the new proposed
added sugars limit (10 grams of added
sugars per 8 fluid ounces).
• Alternative B: Continue to allow all
K–12 schools to offer fat-free and lowfat milk, flavored and unflavored, with
the new proposed added sugars limit for
flavored milk (10 grams of added sugars
per 8 fluid ounces).
USDA also proposed a minor
technical change to the regulatory text
for milk sold a` la carte. Instead of
repeating the allowable milk types in 7
CFR 210.11(m), which describes the
beverages that schools can sell a` la carte,
USDA proposed to cross-reference 7
CFR 210.10(d). This change was
intended to clarify that the NSLP milk
requirements apply to milk sold a` la
carte.
Public Comments
USDA received over 1,600 comments
on flavored milk, including almost 600
unique comments. Of these, over 1,500
supported flavored milk, including
about 375 unique comments. About 70
opposed flavored milk, including about
50 unique comments. Additionally,
specific comment counts regarding
Alternative A and Alternative B
proposals are described in more detail
below. A wide range of stakeholders,
including State agencies, school
nutrition professionals, advocacy
groups, industry respondents,
professional associations, dietitians,
parents, and students commented on the
proposed milk alternatives. At a high
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level, respondents provided the
following feedback on flavored milk:
• Flavored milk is the leading source
of added sugars in school meals.
• Offering flavored milk, which is a
more palatable option for some
children, improves children’s milk
consumption and reduces milk waste.
• Milk is an important source of
calcium, protein, and other
micronutrients.
• USDA should consider operational
constraints, such as a lack of storage
space for flavored milk, when
determining which milk alternative to
finalize.
More detailed respondent feedback,
including respondent input on the two
alternatives, is discussed below.
Alternative A: Allow Flavored Milk for
Older Students Only
Fifty-five respondents, including 36
unique comments, representing school
nutrition professionals, parents, and
advocacy groups, supported Alternative
A. A school nutrition professional
suggested that Alternative A would help
transition students away from flavored
milk and reduce their consumption of
added sugars. This respondent
suggested that after students who are
currently in grades K–5 transition to
middle and high school, USDA could
apply the limit to older children, too. A
parent agreed, asserting that water and
unflavored milk are the only beverages
that young children should consume. A
school nutrition professional stated that,
although flavored milk is the most
popular choice, the amount of added
sugars in flavored milk is ‘‘unnecessary
for our student’s diets.’’ This respondent
argued that students are already
exposed to too much added sugars
outside of school meals. Another
Alternative A proponent stated that
flavored milk should be a treat for
younger students, not an everyday
choice. An advocacy group noted that
flavored milk is a top contributor to
added sugars intake and that younger
children overconsume added sugars at a
higher rate than older children.
Some respondents opposed flavored
milk in school meals entirely. Several
advocacy groups recommended that
USDA limit flavored milk options for all
grade levels. Many respondents urged
USDA to limit flavored milk to the
greatest extent possible, citing that
nutrients found in milk are also found
in other foods that are lower in added
sugars. An individual argued that
flavored milk should not be served in
school meals because the added sugars
‘‘cancels out any potential benefits of
consuming milk.’’ A school district
opposed flavored milk and mentioned
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that flavored milk is not offered at any
of their schools. An advocacy group
urged USDA to prohibit flavored milk in
school meals due to the harmful public
health impacts of added sugars
consumption.
A few respondents addressed
concerns about Alternative A’s potential
impact on children’s milk consumption.
An advocacy group cited research that
found a ‘‘modest decrease’’ in student
milk consumption when flavored milk
was removed from schools but noted
that the same study found ‘‘no
significant reductions in average perstudent intake of calcium, protein, or
vitamin D from milk.’’ The respondent
added that the same study found a
decline in added sugars intake from
removing flavored milk. However, this
advocacy group recommended that
USDA periodically monitor milk
consumption and intake of milk-related
nutrients if Alternative A is
implemented.
In addition to general feedback, USDA
requested public input on the following
questions related to Alternative A:
• Do respondents that support
Alternative A have specific input on
whether USDA should limit flavored
milk to high schools only (grades 9–12)
or to middle schools and high schools
only (grades 6–12)?
• If Alternative A is finalized with
restrictions on flavored milk for grades
K–8 or K–5 in NSLP and SBP, should
USDA also pursue a similar change in
SMP and CACFP?
• Are there any special
considerations USDA should keep in
mind for SMP and CACFP operators,
given the differences in these programs
compared to school meal program
operators?
In response to the first question, one
industry respondent supported limiting
grades K–8 to unflavored milks only, if
this change is accompanied by a
reduction in minimum required calories
or an increase in program funding. This
respondent explained that when
omitting flavored milk, menus are
significantly higher in cost due to
adding calories from other food groups
to meet the required minimum calories.
A school district and a dietitian each
supported removing flavored milk from
the school meal programs entirely but
stated that if USDA maintains flavored
milk for some students, it should be
limited to grades 9–12 only. A few
advocacy groups also supported limiting
elementary and middle schools to
offering unflavored milk only. A few
other advocacy groups supported
allowing flavored milk for grades 6–12
and limiting grades K–5 to unflavored
milk only; one suggested that this
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approach would give middle schools
students, who are old enough to make
healthy food choices, the option to
choose flavored or unflavored milk.
Regarding the second question, over
100 respondents, including 34 unique
comments, addressed whether USDA
should pursue a similar change in SMP
and CACFP, if Alternative A is finalized
for school meals. One CACFP
sponsoring organization did not support
further restricting flavored milk options
in CACFP. A few advocacy groups
representing CACFP sponsoring
organizations stated they ‘‘categorically
oppose’’ Alternative A and that ‘‘USDA
should not pursue a similar change in
CACFP.’’ Another advocacy group
opposed limiting flavored milk to older
children only in the CACFP, asserting
that ‘‘acceptance of milk would
decrease’’ if flavored milk is not
permitted. A State agency also opposed
limiting flavored milk to older children
only in the CACFP, noting that some
children participating in the afterschool
component of CACFP engage in
physical activities, where flavored milk
could be a suitable recovery beverage. A
CACFP sponsoring organization agreed,
suggesting that children who participate
in their afterschool care program prefer
flavored milk.
However, a State agency supported
implementing similar changes in SMP
and CACFP to support consistency in
program requirements, if Alternative A
is finalized for school meals. An
individual also supported similar
changes in SMP and CACFP, arguing
that this would help reduce added
sugars intake and help establish healthy
eating patterns for young children. This
respondent stated that special
considerations for these programs are
‘‘unnecessary.’’ A school district also
supported similar changes in SMP and
CACFP ‘‘for consistent messaging and
implementation.’’
Alternative B: Continue To Allow
Flavored Milk for All K–12 Students
About 800 respondents, including 180
unique comments, including State
agencies, school nutrition professionals,
industry respondents, and individuals,
supported Alternative B. Many cited
children’s preference for flavored milk
as a key reason for supporting
Alternative B. For example, a school
district shared that they serve 90
percent flavored milk and 10 percent
unflavored milk, and a dietitian asserted
that 95 percent of the children at their
school drink flavored milk and the
children ‘‘won’t drink milk anymore’’ if
they only offer unflavored milk. A
school food service professional
supported Alternative B because a
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majority of the milk they purchase (97
percent) is flavored milk and they
would ‘‘rather students take some form
of milk than none at all.’’ Numerous
other respondents agreed, claiming that
flavored milk is associated with higher
milk consumption and student
participation. One respondent
emphasized the importance of allowing
choice and teaching students how to
consume all foods and beverages in
moderation.
A national organization representing
tens of thousands of school nutrition
professionals supported Alternative B,
acknowledging that ‘‘milk processers
have significantly reduced added
sugar[s]’’ in flavored milk served in
schools. A school nutrition professional,
a parent, and other respondents also
recognized the importance of reducing
added sugars, but maintained that
student participation should be a
priority; thus, these respondents
supported Alternative B. Respondents
also noted that flavored milk is an
important source of nutrients such as
calcium and protein. A dietitian
asserted that a small amount of added
sugars in milk helps students receive
the nutritional benefits of milk. One
respondent claimed that children not
drinking milk is more ‘‘detrimental to
[student] health than added sugars in
flavored milk,’’ and therefore supported
continuing to allow flavored milk for all
K–12 students. Another respondent
supported lowering added sugars in
flavored milks, but not restricting
flavored milks. Respondents also stated
that restricting flavored milk may cause
students to consume other beverages,
including sugary beverages like soda
and energy drinks.
Several respondents that supported
Alternative B raised operational
concerns regarding Alternative A. A
State agency suggested that many rural
schools have one building and may only
have one milk cooler for grades K–12.
The State agency also noted that many
schools serve meals to students across
grades in the same meal service (for
example, grades 5–7 or grades 7–9) and
it would be difficult for students to
understand if one grade can have
flavored milk and others cannot.
Similarly, another State agency
mentioned that some of their schools
have grades 6–12 in one building, and
‘‘changing out the milk adds one more
task to a busy lunch period.’’ This
respondent added that some schools do
not have extra refrigeration space to
remove flavored milk from their milk
cooler during the meal service. A third
State agency also noted that schools in
their State have many unique grade
configurations, including grades K–6,
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K–12, and 7–12. This State agency noted
that it would be ‘‘very burdensome’’ for
schools to move milk in and out of
coolers between meal services for
different grades, and that the challenges
of implementing Alternative A would be
even more difficult when different
grades are served during the same meal
periods.
An individual noted that
implementing Alternative A could be
difficult for school employees, who
would be responsible for explaining the
change to families. A dietitian agreed,
suggesting that Alternative A would
send a ‘‘confusing message.’’ A State
agency cited concerns about supply
chain issues and prices, arguing that
schools already have limited choices,
and further restrictions would
negatively impact price and availability.
A school district raised purchasing
concerns, noting that purchasing for a
large district is ‘‘complicated’’ and that
Alternative A could create more
confusion for vendors. A State agency
suggested Alternative A would increase
monitoring requirements. A different
State agency raised similar concerns,
especially when multiple grades share
meal services. For example, this State
agency noted that differing milk
requirements by grade level could create
challenges during an Administrative
Review, as a reviewer would have to
inquire about a student’s grade level
when they are passing through the
lunch line, to ensure the student
received a compliant milk.
Other Comments on Flavored Milk
Some respondents offered their own
alternatives or suggested changes to the
milk requirements. For example, instead
of finalizing Alternative A, several
respondents suggested limiting flavored
milk to lunch only and requiring
unflavored milk at breakfast. One
respondent supported Alternative A, but
for a different approach, suggested
allowing flavored milk only once per
week for grades 9–12. A few
respondents, including an advocacy
group and school districts,
recommended that USDA allow schools
to choose which alternative to
implement.
Other respondents encouraged USDA
to expand milk options beyond fat-free
and low-fat milk. For example, one
school district suggested USDA allow
reduced-fat (2 percent), unflavored milk,
arguing that this option is more
palatable for students. One respondent
suggested allowing whole milk in
school meals, while another agreed and
specifically suggested allowing whole,
flavored milk. A State elected official
encouraged USDA to allow reduced-fat
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31983
and whole milk options, asserting that
this would increase milk consumption
and reduce milk waste. An industry
respondent agreed, stating that they are
confident that the next edition of the
Dietary Guidelines will ‘‘look more
favorably on dairy at all fat levels.’’ This
respondent urged USDA to allow
reduced-fat and whole milk in school
meals in anticipation of what the
industry respondent expects in the next
Dietary Guidelines. A dietitian
suggested USDA consider ‘‘increasing
the allowable fat and calories’’ in milk
options.
A State agency urged USDA to
reconsider the requirement to provide a
variety of fluid milks (i.e., at least two
options) with each meal service. This
respondent argued that the variety
requirement leads to a lot of waste. A
school food service professional agreed,
suggesting that providing variety
contributes to waste. This respondent
stated that ‘‘skim [milk] is almost never
chosen and ends up wasted.’’ A
professional organization cautioned that
limiting flavored milk options could
potentially effect meal participation and
financial viability for schools. A school
district respondent requested that USDA
increase funding for Farm to School and
equipment grant projects to support
more locally produced milk and bulk
milk dispensers.
Final Rule
This final rule codifies the proposal to
maintain the current milk regulations,
with minor technical changes, at 7 CFR
210.10(d), 220.8(d), and 210.11(l).52
Under this final rule, all schools
continue to have the option to offer fatfree and low-fat milk, flavored and
unflavored, to K–12 students, and to sell
fat-free and low-fat milk, flavored and
unflavored, a` la carte. Consistent with
current requirements, unflavored milk
must be offered at each school breakfast
and lunch meal service. SMP and
CACFP operators may continue to offer
fat-free and low-fat milk, flavored and
unflavored, to participants ages 6 and
older. Additionally, as a reminder,
lactose-free and reduced-lactose milk
will continue to meet the meal pattern
requirements for fluid milk under this
final rule (7 CFR 210.10(d)(1)(i),
215.7a(a), 220.8(d), and 226.20(a)(1)).
Under requirements established in
this final rule for added sugars, as
discussed in Section 2: Added Sugars,
flavored milk offered to K–12 students
52 This final rule redesignates the paragraph
outlining requirements for competitive beverages,
which was previously 7 CFR 210.11(m) to instead
be 7 CFR 210.11(l). Under this final rule, the
requirements for milk sold as a competitive
beverage are outlined at 7 CFR 210.11(l).
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in the NSLP and SBP and sold to
students a` la carte during the school day
must comply with the product-based
added sugars limit. Under this productbased limit requirement, effective SY
2025–2026, flavored milk must contain
no more than 10 grams of added sugars
per 8 fluid ounces, or for flavored milk
sold a` la carte in middle and high
schools, 15 grams of added sugars per
12 fluid ounces.
USDA is committed to ensuring that
school meals provide children with
nutrient-dense foods and beverages that
are consistent with the goals of the most
recent Dietary Guidelines. USDA
recognizes that dairy products,
including fluid milk, provide a variety
of essential nutrients—some of which
are underconsumed among school-aged
children. The decision to allow
flavored, low-fat milk acknowledges
concerns expressed in public comments
about declining milk consumption
among school-aged children. It also
acknowledges the nutrients that milk
provides (e.g., calcium, vitamin D, and
potassium), which remain nutrients of
public health concern for the general
U.S. population because they are
underconsumed.53 Respondents
expressed the importance of considering
milk palatability and acceptability when
establishing long-term requirements.
Many stakeholders raised concerns
about the potential impact on milk
consumption if flavored milk options
were limited under Alternative A.
USDA recognizes that both flavored and
unflavored milk provide children with
key nutrients. Flavored milk has been
shown to encourage milk consumption
among school-aged children,54 and
public comments from school nutrition
professionals suggest that children may
select and consume flavored milk more
often than unflavored milk. For
example, USDA research from SY 2014–
2015 found that about 18 percent of
low-fat, flavored milk offered with
school lunch was wasted, compared to
35 percent of low-fat, unflavored milk.55
53 U.S. Department of Agriculture and U.S.
Department of Health and Human Services. Dietary
Guidelines for Americans, 2020–2025. 9th Edition.
December 2020. Page 36. Available at:
DietaryGuidelines.gov.
54 See page 58. Institute of Medicine, Nutrition
Standards for Foods in Schools: Leading the Way
Toward Healthier Youth (‘‘IOM Report’’). Available
at: https://nap.nationalacademies.org/catalog/
11899/nutrition-standards-for-foods-in-schoolsleading-the-way-toward. See also: Mary M. Murphy
et al., Drinking Flavored or Plain Milk is Positively
Associated with Nutrient Intake and Is Not
Associated with Adverse Effects on Weight Status
in U.S. Children and Adolescents.
55 See Table 5.1: Mean Percentage of Observed
Trays including Specific Foods and Mean
Percentage of Observed Foods Wasted in NSLP
Lunches. U.S. Department of Agriculture, Food and
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USDA acknowledges the benefit of
allowing flavored milk to be offered as
a strategy to promote milk consumption,
a beverage that provides several
nutrients that are underconsumed
during childhood and adolescence.
Additionally, many respondents stated
that flavored milk is purchased in
higher quantities compared to
unflavored milk, affirming that flavored
milk is a popular choice among
students. Offering both flavored and
unflavored varieties of milk as part of a
nutritious school meal may help to
minimize the gap between current and
recommended intakes of key nutrients
among school-aged children and
adolescents. For example, a USDA study
found that K–12 students who
participated in NSLP were significantly
more likely to consume milk compared
to students who did not participate.56
Thus, the school meal programs remain
a contributing factor in influencing milk
consumption among children. USDA
acknowledges the importance of
allowing schools the option to offer milk
varieties that children will consume and
enjoy.
USDA recognizes that some
stakeholders supported limiting
flavored milk options under Alternative
A. USDA appreciates public input on
Alternative A, which would have
limited flavored milk offerings to older
students, in grades 9–12 or grades 6–12.
Several respondents acknowledged that
Alternative A would help reduce the
intake of beverages with added sugars,
especially for younger children.
Advocacy groups and parents also
supported this alternative as a way to
transition students from flavored to
unflavored milk and reduce their
consumption of added sugars.
Conversely, other respondents raised
important concerns about the
operational feasibility if Alternative A
were finalized. For example, one school
district explained that some schools
serve multiple grades in a single meal
service, and students from grades K–12
may be in the cafeteria at the same time.
These schools may not have the
Nutrition Service, Office of Policy Support, School
Nutrition and Meal Cost Study, Final Report
Volume 4: Student Participation, Satisfaction, Plate
Waste, and Dietary Intakes, by Mary Kay Fox,
Elizabeth Gearan, Charlotte Cabili, Dallas Dotter,
Katherine Niland, Liana Washburn, Nora Paxton,
Lauren Olsho, Lindsay LeClair, and Vinh Tran.
Project Officer: John Endahl. Alexandria, VA: April
2019. Available at: https://www.fns.usda.gov/
school-nutrition-and-meal-cost-study.
56 U.S. Department of Agriculture, Food and
Nutrition Service, Office of Policy Support, School
Nutrition and Meal Cost Study Volume 4: Student
Participation, Satisfaction, Plate Waste, and Dietary
Intakes Appendix I–P. Available at: https://
www.fns.usda.gov/school-nutrition-and-meal-coststudy.
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opportunity or capacity to limit milk
options as children from different grade
levels pass through the serving lines,
and would have to monitor student milk
selections by grade level to ensure
compliance with Alternative A. A few
State agencies added that limiting
flavored milk options by grade levels
could be challenging to monitor during
Administrative Reviews. USDA
acknowledges respondent concerns that
Alternative A could be difficult to
implement and monitor, especially for
small schools or schools where students
from different grade levels share the
same meal service. Due to the variability
in school size, grade level
configurations, storage and cafeteria
space, and overall operations, USDA
recognizes that Alternative A could
cause unintended operational and
administrative challenges for both
schools and State agencies. USDA
appreciates the important concerns
raised by stakeholders, particularly on
behalf of small schools, and considered
this input in the final rule.
USDA recognizes that under this final
rule, flavored milk will continue to
contribute to added sugars in school
meals. However, as noted in Section 2:
Added Sugars, this rulemaking also
finalizes a product-based added sugars
limit for flavored milk. By SY 2025–
2026, schools must implement a
product-based limit for flavored milk of
no more than 10 grams of added sugars
per 8 fluid ounces or, for flavored milk
sold as a competitive food for middle
and high schools, 15 grams of added
sugars per 12 fluid ounces. In SY 2027–
2028, this rule will also implement an
overall weekly limit for added sugars of
less than 10 percent of calories per
week. USDA expects that these actions,
as well as the other product-based
added sugars limits finalized in this
rulemaking, will support an overall
decrease in the added sugars content of
school meals. Additionally, as noted
above, this final rule maintains that
NSLP and SBP operators who choose to
offer flavored milk must also offer
unflavored milk (fat-free or low-fat) to
students in the same meal service. This
requirement ensures that milk variety in
the NSLP and SBP is not limited to
flavored milk choices, and that a
nutrient-dense form of milk that is
lower in added sugars (i.e., unflavored
milk) is always available for students to
select. USDA is committed to advancing
the nutritional quality of school meals
and reducing added sugars to safeguard
children’s health and align with the
goals of the most recent Dietary
Guidelines.
USDA appreciates respondent
feedback on additional approaches to
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reduce added sugars intake from
flavored milk. For example, respondents
suggested that schools can limit flavored
milk options to lunch only, procure
flavored milks with the least amount of
added sugars, or limit flavored milk to
one day per school week. Additionally,
there is no requirement that schools
offer flavored milk, and schools may
choose to remove all flavored milk from
school meal menus as long as the school
continues to offer a variety of fluid milk.
For example, one school district
commented that they have removed
flavored milk from their menus to
support school wellness. USDA
encourages schools to consider these
strategies to further reduce added sugars
in school meals and to choose options
that work best for their unique
communities.
Respondents also raised other ideas
and suggestions related to milk
requirements. For example, some
respondents encouraged USDA to
remove the milk variety requirement.
The requirement to offer a variety of
milk options is mandated by statute,
and USDA does not have the authority
to change this statutory requirement (42
U.S.C. 1758(a)(2)(i)). Schools have
several options to meet the milk variety
requirement, such as offering unflavored
fat-free and unflavored low-fat milk.
Schools may also offer lactose-free or
reduced-lactose milk (fat-free or low-fat)
to meet the milk variety requirement.
Other respondents recommended USDA
allow schools to offer milk with a higher
fat content. While USDA appreciates
comments suggesting schools be
allowed to offer reduced fat and whole
milk, allowing these milk options in the
school meal programs would not be
consistent with the goals of the most
recent Dietary Guidelines as required by
the NSLA and would make it difficult
for menu planners to achieve weekly
dietary specifications without exceeding
calorie and saturated fat limits.
Statutory requirements state that milk
offered in reimbursable school meals
must be consistent with the most recent
Dietary Guidelines, and the Dietary
Guidelines, 2020–2025 recommends
unsweetened, fat-free or low-fat milk for
school-aged children. Therefore, USDA
does not permit reduced-fat or whole
milk in the school meal programs (7
CFR 210.10(d)(1)(i) and 220.8(d)).
As mentioned above, this final rule
does not change any milk requirements
in CACFP. Many respondents requested
that milk standards established in
school meal programs be consistent
with the CACFP. USDA recognizes that
regulatory consistency across programs,
a long-time goal at USDA, facilitates
program administration and operation at
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the State and local levels, fosters
support, and meets stakeholder
expectations.
Accordingly, this final rule makes
minor technical changes to the
requirements found in 7 CFR
210.10(d)(1), 210.11(l)(1)(ii), (l)(2)(ii),
and (l)(3)(ii),57 and 220.8(d). This final
rule continues to allow NSLP and SBP
operators to offer unflavored or flavored,
fat-free or low-fat milk as part of a
reimbursable meal and for sale a` la
carte, and to allow flavored, low-fat
milk in the SMP and in the CACFP for
participants ages 6 and older. Because
this rule finalizes the current flavored
milk requirements, child nutrition
program operators will not need to make
changes to their menus to comply with
this provision, beyond those changes
described in Section 2: Added Sugars.
Section 3B: Fluid Milk Substitutes:
Responses To Request for Input
Current Requirement
As noted in Section 3A: Flavored
Milk, the National School Lunch Act
requires fluid milk (cow’s milk) to be
offered with every school breakfast and
lunch. The statute is also very specific
about allowable fluid milk substitutes
for non-disability reasons. To provide a
substitute for cow’s milk in the school
meal programs, the statute requires:
• That the fluid milk substitute is
nutritionally equivalent to fluid milk
and meets nutritional standards
established by the Secretary, which
must include fortification of calcium,
protein, vitamin A, and vitamin D to
levels found in cow’s milk (42 U.S.C.
1758(a)(2)(B)(i)). This requirement also
applies to the CACFP (42 U.S.C.
1766(g)(4)(B)).
• That the substitution is requested in
writing by a medical authority or the
child’s parent or legal guardian (42
U.S.C. 1758(a)(2)(B)(ii)). This
requirement also applies to CACFP (42
U.S.C. 1766(g)(4)(C)(i)(II)).
• That the school notify the State
agency if it is providing fluid milk
substitutes for non-disability reasons (42
U.S.C. 1758(a)(2)(B)(ii)).
• That the school cover any expenses
related to providing fluid milk
substitutes in excess of program
reimbursements (42 U.S.C.
1758(a)(2)(B)(iii)). This requirement also
applies to institutions or facilities in the
CACFP (42 U.S.C. 1766(g)(4)(D)).
Under current school meal
regulations, the statutory requirements
57 This final rule redesignates the paragraph
outlining requirements for competitive beverages,
which was previously 7 CFR 210.11(m) to instead
be 7 CFR 210.11(l). Under this final rule, the
requirements for milk sold as a competitive
beverage are outlined at 7 CFR 210.11(l).
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31985
for fluid milk substitutes for nondisability reasons are codified in two
places:
• Current 7 CFR 210.10(d)(3) details
the nutrition requirements for fluid milk
substitutes for non-disability reasons.
• Current 7 CFR 210.10(m)(2)(i)
through (iii) detail additional
requirements for fluid milk substitutes
for non-disability reasons, such as the
process for requesting a fluid milk
substitute on behalf of a student.
Under current CACFP regulations, the
statutory requirements for fluid milk
substitutes are codified at 7 CFR
226.20(g)(3).
As a point of clarification, the statute
and program regulations require
schools, institutions, and facilities to
provide meal modifications for
participants with a disability that
restricts their diet. Lactose intolerance
may be considered a disability. For
example, a child whose digestion is
impaired due to lactose intolerance may
be considered a person with a disability
who requires a substitution for cow’s
milk. In this example, if a student
cannot consume cow’s milk due to a
disability, and the school food authority
obtains a written medical statement as
documentation of the student’s
disability, the school is required to
provide a substitution for cow’s milk.
Further, when providing a meal
modification for a participant’s
disability, the substitution for cow’s
milk does not need to meet the nondisability fluid milk substitute
requirements. When providing a meal
modification for a participant’s
disability, the school, institution, or
facility would review the participant’s
medical statement which must include
a recommended alternative to
accommodate the participant with a
disability,58 and the substitution would
not be required to meet the nutrition
requirements for non-disability fluid
milk substitutes. The nutrition
requirements for non-disability fluid
milk substitutes apply only in nondisability situations. This section will
focus on non-disability fluid milk
substitute requirements. Please see
Section 14: Meal Modifications for a
more detailed overview of meal
modifications for disability reasons,
58 However, Program operators should not deny
or delay a requested modification because the
medical statement does not provide recommended
alternatives. When necessary, Program operators
should work with the participant’s parent or
guardian to obtain a supplemental medical
statement. See Question 17. U.S. Department of
Agriculture, Accommodating Disabilities in the
School Meal Programs: Guidance and Questions
and Answers (Q&As). April 25, 2017. Available at:
https://www.fns.usda.gov/cn/accommodatingdisabilities-school-meal-programs-guidance-qas.
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including updates made by this
rulemaking.
Proposed Rule
USDA proposed to reorganize the
NSLP regulatory text related to fluid
milk substitutes for non-disability
reasons to clarify the requirements for
requesting and providing non-disability
fluid milk substitutes in the school meal
programs. The rule proposed to move
the NSLP regulatory text explaining the
non-disability fluid milk substitute
requirements from paragraph (m) of 7
CFR 210.10—which currently discusses
exceptions and variations allowed in
reimbursable meals—to paragraph (d) of
7 CFR 210.10—which discusses the
fluid milk requirements.
USDA did not propose substantive
changes to the requirements for nondisability fluid milk substitutes. As
noted in the proposed rule, USDA does
not have the authority to change the
statutory requirements for non-disability
fluid milk substitutes. However, USDA
requested public input on the current
fluid milk substitute process,
particularly from parents and guardians
with firsthand experience requesting a
non-disability fluid milk substitute on
behalf of their child, and program
operators with firsthand experience
processing a request.
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Public Comments
USDA received 390 comments with
feedback about the current fluid milk
substitute process, including 194 unique
comments. Several respondents
encouraged USDA to make the process
of requesting and providing fluid milk
substitutes less cumbersome so that
participants can more easily access
substitutes. These respondents offered a
variety of suggestions for USDA, State
agencies, schools, institutions, and
facilities to consider to improve access
to fluid milk substitutes. For example,
respondents suggested:
• Pursuing a public education
campaign to encourage medical
screening of children with possible
lactose intolerance and milk allergies.
• Developing informational fliers
with basic facts about lactose
intolerance and milk allergies to be
posted in school cafeterias and
community clinics and sent home with
children.
• Improving awareness of the process
of requesting fluid milk substitutes
among school food service
professionals, parents, guardians, and
students, for example, by:
• Clarifying that schools are
authorized and encouraged to provide
fluid milk substitutes for non-disability
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reasons based on a parent or guardian
request.
• Issuing guidance with examples of
reasons students may request a nondisability fluid milk substitute, such as
following a vegan diet.
• Simplifying the process of
requesting a fluid milk substitute for a
participant, for example, by:
• Including in registration materials a
simple way for parents and guardians to
request a fluid milk substitute, such as
a form with a checkbox.
• Providing a model notice and form
parents and guardians may use to
request a fluid milk substitute that
schools, institutions, or facilities can
post on their website and mail to
families.
• Providing a list or database of
allowable fluid milk substitutes, such as
fortified soy beverages or pea protein
milk.
• Identifying more shelf-stable fluid
milk substitute options, especially for
small schools, institutions, and facilities
where only a few participants request a
fluid milk substitute.
• Clarifying the differences between
meal modifications for disability
reasons and fluid milk substitutes for
non-disability reasons.
• Creating a focus group of students,
school nutrition professionals, district
officials, and parents and guardians
from across the country to further
understand the barriers students face in
accessing fluid milk substitutes.
• Providing additional
reimbursement or funding to schools
that offer non-disability fluid milk
substitutes.
Several respondents had additional
feedback on the process of identifying
products that meet the nutrition
requirements for fluid milk substitutes.
One advocacy group and a few other
respondents encouraged USDA to
modify the process of identifying
acceptable fluid milk substitutes so that
program operators can refer to the
Nutrition Facts label, noting that
currently, some of the required nutrients
are not always listed on the label. A
State agency observed that when a
required nutrient is not included on the
Nutrition Facts label, schools need to
contact the manufacturer to obtain
nutrition information. Another State
agency and an advocacy group argued
that the current process makes it
difficult for program operators to offer
fluid milk substitutes. Further, a State
agency suggested the requirement for
micronutrients in fluid milk substitutes
is ‘‘excessive,’’ suggesting that requiring
substitutes to match the micronutrient
profiles of milk discounts the other
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nutrition benefits of fluid milk
substitutes.
A few respondents offered suggestions
that would conflict with the statutory
requirements for fluid milk substitutes,
as detailed in the ‘‘Current
Requirements’’ section above. For
example, respondents suggested that
USDA:
• Make non-dairy milk options
available to all children and allow more
beverages to be offered as fluid milk
substitutes.
• Remove the requirement for
parents, guardians, or a medical
authority to request the fluid milk
substitute.
• Remove the requirement that school
food authorities notify the State agency
if any of its schools choose to offer fluid
milk substitutes for non-disability
reasons.
• Make broader changes to the meal
pattern requirements, such as removing
the requirement to offer fluid milk
altogether.
A few respondents offered suggestions
related to other proposals included in
the rule. An industry respondent and an
advocacy group suggested that if USDA
finalizes added sugars limits for
flavored cow’s milk, the same limits
should apply to fluid milk substitutes.
However, another respondent
recommended that if USDA applies a
sugar limit to fluid milk substitutes, that
the limit be for total sugars (rather than
added sugars). One State agency
requested clarification about whether
flavored milk restrictions for K–5 or K–
8 students would apply to fluid milk
substitutes, if they are finalized for
cow’s milk. Other respondents
supported and recommended
maintaining the current non-disability
fluid milk substitute process. An
industry respondent affirmed that it is
important for non-dairy fluid milk
substitutes to provide nutrients similar
to cow’s milk. An advocacy group
agreed, noting that except for fortified
soy beverages and soy yogurt, the
Dietary Guidelines do not include plantbased beverages as part of the dairy
group. This respondent supported
maintaining the statutory requirement
that fluid milk substitutes be
nutritionally comparable to cow’s milk.
Another industry respondent affirmed
that USDA developed the nutritional
requirements for fluid milk substitutes
‘‘on the basis of nutrition science and in
accordance with statutory
requirements.’’ An advocacy group
supported the current process for fluid
milk substitutes, arguing that it ‘‘works
well for school meal program operators’’
and provides clear guidelines. A State
agency agreed, suggesting that soy milk
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and lactose-free milk are ‘‘readily
available’’ and are nutritious options for
children.
One industry respondent appeared to
misunderstand the types of fluid milk
substitutes that are permitted for nondisability reasons. This respondent
argued that certain non-dairy milks are
not nutritionally equivalent to cow’s
milk and that students should either
drink cow’s milk or water. To clarify, to
be allowed as a non-disability fluid milk
substitute, a product must meet
nutritional requirements outlined in
regulation. These statutory requirements
ensure that fluid milk substitutes are
nutritionally equivalent to fluid milk
(42 U.S.C. 1758(a)(2)(B)(i) and 42 U.S.C.
1766(g)(4)(B)). Non-dairy milks that do
not meet the nutritional requirements
outlined in regulation are not allowable
fluid milk substitutes. Another industry
respondent confirmed that most plantbased milks, such as almond, coconut,
and rice milks, do not currently meet
the nutrient standards to qualify as fluid
milk substitutes.
Some respondents provided input on
lactose-free or reduced-lactose milk.
Low-fat or fat-free lactose-free and
reduced-lactose milk are milk under the
statute and program regulations (42
U.S.C. 1758(a)(2)(A)(ii) and 7 CFR
210.10(d)(1)(i), 220.8(d), and
226.20(a)(1)). This means that schools,
institutions, and facilities may offer
lactose-free and reduced-lactose milk
toward the milk requirements without
obtaining a request from a parent or
guardian or a medical authority. A few
industry respondents encouraged USDA
to provide incentives to schools that opt
to offer lactose-free milk on a routine
basis to all students who want it, and to
work with industry to facilitate more
extensive offerings of lactose-free milk
in schools. For example, these
respondents suggested that USDA
design a specification for 8-ounce,
lactose-free milk and offer it through
USDA Foods. Similarly, a State agency
noted that it would be helpful if
processors packaged 8-ounce, lactosefree or reduced-lactose milks to make
these options more accessible to
operators.
Several respondents raised concerns
on behalf of children who cannot
consume, or have difficulty consuming,
cow’s milk. For example, a group of
State Attorneys General mentioned that
children of color have markedly higher
rates of lactose intolerance, citing a 2013
study 59 that found that Black children
59 The public comment cited the following study:
Wegienka et al., Racial Differences in Allergic
Sensitization: Recent Findings and Future
Directions, Current Allergy and Asthma Reports,
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were twice as likely as non-Hispanic
white children to have allergic
sensitization to milk. Similarly, a letter
from Members of Congress noted that
‘‘most Black, Indigenous, and other
People of Color (BIPOC) are lactose
intolerant.’’ An advocacy group cited
the National Institutes of Health
website, which states that about 68
percent of the world’s population has
lactose malabsorption.60 A few
individuals shared their personal
experiences facing digestive issues as a
child, which they attributed to drinking
cow’s milk with their school lunch.
These respondents suggested improved
access to fluid milk substitutes could
help students avoid experiencing the
same discomfort today. To help address
these issues, a form letter campaign
suggested that USDA clarify in the final
rule that lactose intolerance may be
considered a disability. As noted, a
participant whose digestion is impaired
due to lactose intolerance may be a
person with a disability that requires a
menu substitution for fluid milk, and
the statute and regulation require
schools, institutions, and facilities to
provide meal modifications for
participants with a disability that
restricts their diet. As emphasized by
these and numerous other comments,
USDA appreciates the importance of
clarifying the requirements for meal
modifications for disability reasons and
fluid milk substitutes for non-disability
reasons. USDA is committed to
providing guidance to help ensure
participants who require a substitution
for cow’s milk due to a disability receive
a meal modification.
Final Rule
This final rule reorganizes the NSLP
regulatory text related to fluid milk
substitutes for non-disability reasons.
This rule moves the regulatory text
explaining the non-disability fluid milk
substitute requirements from 7 CFR
210.10(m), which discusses exceptions
and variations allowed in reimbursable
meals, to 7 CFR 210.10(d), which
discusses the fluid milk requirements.
As noted in the proposed rule, USDA
does not have the authority to change
the statutory requirements for nondisability fluid milk substitutes,61 such
June 2013, https://www.ncbi.nlm.nih.gov/pmc/
articles/PMC4888051.
60 The public comment cited the following web
page: National Institutes of Health. How common is
lactose malabsorption? Available at: https://
www.niddk.nih.gov/health-information/digestivediseases/lactose-intolerance/definition-facts
#:∼:text=While%20most%20infants%20can%2
0digest,world%27s%20population%20has%
20lactose%20malabsorption.
61 As detailed in the Current Requirements
section, the following requirements related to fluid
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as the statutory requirement that fluid
milk substitutes meet specific nutrition
requirements and that fluid milk
substitutes must be requested in writing.
Therefore, this final rule does not make
any substantive changes to the nondisability fluid milk substitute request
process outlined in regulation.
However, USDA greatly appreciates
input that respondents provided on the
request process, including their advice
on best practices to improve the process
for program operators, families, and
participants. USDA will consider
including this input in future best
practice resources.
USDA also encourages State agencies,
schools, institutions, facilities, and
other stakeholders to consider this input
in their State and local processes. For
example, community organizations
could partner with institutions and
facilities to provide families with
information about lactose intolerance.
USDA reminds schools, institutions,
and facilities that lactose-free and
reduced-lactose milk meet the meal
pattern requirements for fluid milk (7
CFR 210.10(d)(1)(i), 215.7a(a), 220.8(d),
and 226.20(a)(1)). Schools, institutions,
and facilities may choose to provide
lactose-free and reduced-lactose milk to
participants without needing to obtain a
written request from a parent or
guardian.
Regarding fluid milk substitutes that
require a written request from a parent
or guardian, school food authorities
could provide a simple form that
parents and guardians could use to
request a substitute when sending
student registration materials. For its
part, USDA remains committed to
providing guidance to clarify the
differences between meal modifications
for disability reasons and fluid milk
substitutes for non-disability reasons
and will consider ways to improve
guidance related to the fluid milk
substitutes process. Please see Section
14: Meal Modifications for a more
detailed overview of meal modifications
milk substitutes are statutory, meaning that USDA
does not have discretion to change them: that the
fluid milk substitute is nutritionally equivalent to
fluid milk and meets nutritional standards
established by the Secretary, which must include
fortification of calcium, protein, vitamin A, and
vitamin D to levels found in cow’s milk (42 U.S.C.
1758(a)(2)(B)(i)); that the substitution is requested
in writing by a medical authority or the child’s
parent or legal guardian (42 U.S.C. 1758(a)(2)(B)(ii));
that the school notify the State agency if it is
providing fluid milk substitutes for non-disability
reasons (42 U.S.C. 1758(a)(2)(B)(ii)); and that the
school cover any expenses related to providing
fluid milk substitutes in excess of program
reimbursements (42 U.S.C. 1758(a)(2)(B)(iii)). This
requirement also applies to institutions or facilities
in the CACFP (42 U.S.C. 1766(g)(4)(D)).
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for disability reasons, including updates
made by this rulemaking.
USDA appreciates requests for
clarification about whether fluid milk
substitutes offered in the NSLP and SBP
are impacted by the added sugars
provision of this rule. USDA did not
propose to apply the product-based
added sugars limit for flavored milk to
fluid milk substitutes; that proposal was
specific to cow’s milk. Therefore, fluid
milk substitutes are not required to meet
the product-based added sugars limit for
flavored cow’s milk. However, effective
SY 2027–2028, all meals offered during
a school week—including meals
containing fluid milk substitutes—will
be required to, on average, meet the
weekly added sugars limit (i.e., no more
than 10 percent of calories from added
sugars).
Accordingly, this final rule amends 7
CFR 210.10(d) and (m) to reorganize the
regulatory text related to fluid milk
substitutes for non-disability reasons in
the school meal programs. Schools are
not required to change menus or
operations as a result of this technical
change.
Section 3C: Fluid Milk Substitutes:
Nutrient Requirements
Current Requirements and Proposed
Rule
As detailed above, the statute and
regulations specify nutrition
requirements for fluid milk substitutes
(42 U.S.C. 1758(a)(2)(B)(i), 42 U.S.C.
1766(g)(4)(B), 7 CFR 210.10(d)(3), and
226.20(g)(4)(B)). Currently, the vitamin
A and vitamin D requirements are
specified in International Units, or IUs.
However, in 2016, the FDA published a
final rule that changed the labeling
requirements for vitamins A and D to
micrograms (mcg) rather than IUs.62
To align with the labeling
requirements in the FDA’s rule, USDA
proposed to update the regulatory
nutrition requirements for fluid milk
substitutes in the 2020 proposed rule.
This proposal applied to NSLP, SMP,
and CACFP regulations for fluid milk
substitutes.
Public Comments
USDA received 46 of the comments
on this provision of the 2020 proposed
rule, including 22 unique comments; all
supported this change. Several
proponents suggested that this change
could reduce burden and make it easier
for child nutrition program operators to
identify fluid milk substitutes. A State
agency offered support for aligning
regulations with current packaging
information, agreeing that this could
reduce burden. Another State agency
noted that the current inconsistency
creates additional work and strongly
supported the proposed change.
Final Rule
As a conforming amendment, this
final rule changes the units for vitamin
A and vitamin D requirements for fluid
milk substitutes. Instead of 500 IUs, the
unit for the vitamin A requirement is
now 150 mcg retinol activity
equivalents (RAE) per 8 fluid ounces.
Instead of 100 IUs, the unit for the
vitamin D requirement is now 2.5 mcg
per 8 fluid ounces. These requirements,
along with the other nutrition
requirements for fluid milk substitutes,
are shown in the table below.
Nutrition Requirements for Fluid Milk Substitutes
Per Cup (8 fl. oz.)
Nutrient
276mg.
Calcium
8g.
Protein
Vitamin A
150 mcg. retinol activity equivalents
(RAE)
2.5 mcg.
24mg.
222mg.
349 mg.
0.44 mg.
I.I mcg.
The amount of vitamin A and vitamin
D required in fluid milk substitutes does
not change; only the unit of
measurement has changed to conform to
FDA labeling requirements.
Accordingly, this final rule amends 7
CFR 210.10(d)(2)(ii), 215.7a(b)(2), and
226.20(g)(3)(ii). Child nutrition program
operators are not required to change
menus or operations as a result of this
technical change.
Section 4: Whole Grains
62 Food and Drug Administration. Food Labeling:
Revision of the Nutrition and Supplement Facts
Labels (81 FR 33742, May 27, 2016). Available at:
https://www.federalregister.gov/documents/2016/
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rich requirement took effect on July 1,
2022.
Current Requirement
Current regulations at 7 CFR
210.10(c)(2)(iv) and 220.8(c)(2)(iv)
require that at least 80 percent of the
weekly grains offered in the school
lunch and breakfast programs must be
whole grain-rich. The remaining grain
items offered must be enriched. To meet
USDA’s whole grain-rich criteria, a
product must contain 50 to 100 percent
whole grains; any grain ingredients that
are not whole grain must be enriched,
bran, or germ. The current whole grain-
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Proposed Rule
The proposed rule included two
options for offering whole grains in the
school lunch and breakfast programs
and requested public input on both. The
rule:
• Proposed to maintain the current
whole grains requirement that at least
80 percent of the weekly grains offered
are whole grain-rich, based on ounce
equivalents.
• Requested public input on an
alternative whole grains option, which
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VitaminD
Magnesium
Phosphorous
Potassium
Riboflavin
Vitamin B-12
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would require that all grains offered
must be whole grain-rich, except that
one day each school week, schools may
offer enriched grains.
USDA requested public input on both
approaches as well as the following
questions:
• Which option would be simplest for
menu planners to implement, and why?
• Which option would be simplest to
monitor, and why?
In addition, USDA proposed to codify
the definition of ‘‘whole grain-rich’’ for
clarity. The proposed regulatory
definition reads as follows: Whole grainrich is the term designated by FNS to
indicate that the grain content of a
product is between 50 and 100 percent
whole grain with any remaining grains
being enriched. This proposed
definition would not change the
meaning of whole grain-rich, which has
previously been communicated in
USDA guidance. USDA proposed
codifying the definition in NSLP, SBP,
and CACFP regulations.
Finally, USDA proposed to update the
definition of ‘‘entre´e item’’ in the
competitive food service and standards
regulations (7 CFR 210.11(a)(3)).63
These proposed changes sought to
update the whole grain-rich
requirements for entre´e items sold as
Smart Snacks in School for consistency
with school meal requirements.
Public Comments
USDA received over 80,000 comments
on the whole grains provision of the
proposed rule, a majority of which were
coded as ‘‘mixed’’ or ‘‘other’’ comments.
Overall, about 3,800 comments
supported whole grains, including 47
unique comments, while 49 comments
opposed whole grains, including 44
unique comments. State agencies,
school nutrition professionals, advocacy
groups, professional organizations,
industry respondents, dietitians, school
nutrition professionals, and individuals
provided comments on the proposals.
At a high level, respondents provided
the following feedback on whole grains:
• Whole grains are an important
source of fiber and other nutrients.
• Whole grain-rich varieties of certain
foods are less palatable to students, and
some whole grain-rich products are less
widely available than enriched
products.
• USDA should establish a whole
grain-rich requirement that allows
flexibility for schools to occasionally
offer enriched grains.
63 For more information on Smart Snacks in
Schools, see: U.S. Department of Agriculture, Tools
for Schools—Focusing on Smart Snacks. Available
at: https://www.fns.usda.gov/cn/tools-schoolsfocusing-smart-snacks.
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More detailed respondent feedback,
including respondent feedback on the
proposal to maintain the current
requirement, as well as the alternative
days-per-week model, is included
below.
Importance of Whole Grains
Many respondents highlighted the
importance of whole grains to children’s
diets. An advocacy group supported
whole grain consumption for children’s
health, reasoning that whole grain foods
are wholesome, nutrient-dense, and
high quality. An industry respondent
mentioned that whole grain-rich
requirements in school meals allow
students to benefit from whole grain
foods, which provide important
nutrients. An individual agreed, adding
that whole grains are a good source of
dietary fiber. Similarly, another
respondent asserted that whole grain
consumption should be encouraged
because of the ‘‘well documented’’
positive health effects.
Proposed Approach: Maintain 80
Percent Whole Grain-Rich Requirement,
Based on Ounce Equivalents
About 4,800 respondents supported
maintaining the current whole grainrich requirement, including 291 unique
comments. Several respondents,
including a State agency and a few
dietitians, stated that maintaining the
current, 80 percent requirement would
provide a balanced approach throughout
the week and allow menu planners and
students continued flexibility. An array
of respondents supported maintaining
the current requirement because of the
nutritional benefits of whole grains and
fiber consumption. Many respondents,
including school nutrition
professionals, agreed that the current
requirement helps to increase students’
whole grain consumption while
allowing flexibility to offer some
enriched grains, such as pasta. A State
agency, professional organizations,
school districts, and form letter
campaigns noted that maintaining the
current requirement would encourage
whole grain consumption while
allowing schools the opportunity to
serve culturally relevant enriched grain
items.
One respondent appreciated the
current 80 percent whole grain-rich
requirement and mentioned that their
school menu usually offers about 90
percent whole grain-rich grains. This
respondent stated that the 80 percent
requirement provides ‘‘wiggle room’’ if
a product they normally buy as whole
grain-rich is not available and they have
to buy the enriched option. A school
nutrition professional explained that
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while it took several years to adjust to
whole grain-rich products, students at
their school now mostly accept them.
Another school district shared that its
schools implement a 100 percent whole
grain-rich requirement, but still
supported the 80 percent requirement
because it allows flexibility for schools
to occasionally offer enriched grains.
A State agency supported maintaining
the current requirement because schools
have successfully implemented, and are
comfortable with, the requirement.
Similarly, another State agency noted
that schools can rely on existing menu
planning software for implementation
and monitoring. A national
organization, representing tens of
thousands of school nutrition
professionals supported the current
requirement, emphasizing that this
approach would be the ‘‘simplest’’ for
menu planners to implement and State
agencies to monitor. One State agency
and two professional organizations
suggested that maintaining the current
requirement would not require staff
retraining or menu changes, and would
prevent confusion in menu planning, for
example, during shortened school
weeks.
Twenty-one respondents, all unique
comments, opposed the current whole
grain-rich requirement or raised
concerns about implementation. For
example, a State agency expressed
concern that the 80 percent threshold
may contribute to administrative burden
for both menu planning and
Administrative Reviews. This State
agency noted that calculating 80 percent
whole grain-rich offerings across weekly
menus could be complex, timeconsuming, and error prone. Another
respondent mentioned that the current
requirement is easier to monitor with
nutrition software but acknowledged
that the days-per-week model would be
easier for schools that do not have
software.
Alternative Approach: Days-Per-Week
Model
About 9,100 respondents supported
the alternative days-per-week model,
including 47 unique comments. A State
agency reasoned that the alternative
option would simplify menu planning
and reduce non-compliance and
monitoring burden. Other respondents,
including a professional association, a
few school nutrition professionals, and
a dietitian, agreed, and gave examples of
how the alternative approach could be
easier to implement. For example,
respondents suggested that the days-perweek requirement would be easier to
understand, would eliminate the need
to calculate percentages, and would
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simplify reviews for State agencies. A
school nutrition professional stated that
they are implementing the current
whole grain-rich requirement using a
days-per-week model and asserted that
they find this approach simple to plan
and monitor.
Other proponents added that the
alternative whole grain-rich approach is
nutritionally sound. For example, a
form letter campaign claimed that the
days-per-week model supports a strong
whole grain standard. An industry
respondent mentioned that allowing
enriched grains one day per week would
ensure that students are exposed to
whole grains in most of their school
meals.
Fifty-six respondents, including 37
unique comments, opposed the
alternative days-per-week model or
raised concerns about implementation.
A dietitian expressed concern that the
alternative model would limit menu
planning flexibility. A State agency
shared concerns that schools could
potentially offer a larger amount of
enriched grains one day each school
week, which could reduce the overall
percentage of whole grain-rich items
offered during the week. A few State
agencies requested USDA provide
implementation guidance for the daysper-week model, particularly for schools
with alternative schedules (such as fouror seven-day school weeks) and for
school weeks that are shortened due to
holidays, vacations, unexpected
closures, and emergencies. Some
respondents cautioned that during
shortened school weeks, an even larger
amount of overall grain offerings could
be enriched.
Other Approaches Suggested by
Comments
Several respondents provided mixed
responses on the two approaches or
suggested their own alternatives. Many
respondents, including professional
organizations, advocacy groups, and a
school district encouraged USDA to
allow school districts to choose which
of the whole grain-rich approaches they
would like to implement, reasoning that
doing so would provide greater
flexibility in program operations. A few
professional organizations added that
some school districts may find it easier
to implement one option over the other,
depending on their unique supply
chain, staffing, and menu planning
considerations. Some highlighted that
providing a choice between both
options would be considerate of the
operational differences between school
districts of varying sizes as well as
differences between rural and urban
school districts.
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An advocacy group expressed concern
that while both approaches would
encourage whole grain consumption,
they do not fully align with the Dietary
Guidelines recommendation that at least
half of grains are whole grains.64 Several
advocacy groups urged USDA to require
100 percent of grain products offered in
school meals to be whole-grain rich. A
State agency emphasized that they have
maintained a 100 percent whole grainrich requirement, suggesting that their
schools experience minimal issues
complying with their statewide
requirement and are successful in
procuring products to meet that
requirement. Another individual
recommended USDA require all grains
to be whole grains (rather than having
a whole grain-rich requirement) and
expressed concern that whole grain-rich
items are only required to contain at
least 50 percent whole grains. For
clarity, USDA proposed codifying the
definition of whole grain-rich to explain
that products containing 50 to 100
percent whole grain, such as whole
grain oatmeal, are whole grain-rich.
An advocacy group supported
strengthening the whole grain-rich
requirement reasoning that it could
improve schools’ environmental
sustainability. Instead of permanently
maintaining the current requirement,
this respondent recommended that
USDA transition to requiring all grains
offered to be whole grain-rich by SY
2027–2028. Or, if USDA opted to
finalize the days-per-week model, this
advocacy group recommended that
USDA add a requirement that schools
‘‘balance’’ the enriched grain day with
a 100 percent whole grains day. A form
letter suggested that USDA adopt a 100
percent whole grain-rich requirement or
increase the whole grain-rich threshold
to 90 percent and adopt an additional
requirement for fiber. An industry
respondent supported the 80 percent
threshold for NSLP, but suggested
USDA require that 100 percent of grains
offered in the SBP be whole grain-rich.
Additionally, this respondent suggested
that all breakfast cereal offered in child
nutrition programs should be whole
grain-rich, noting that there are a wide
variety of whole grain-rich breakfast
cereals available.
Some respondents provided
suggestions or questions for USDA to
consider. A parent suggested adjusting
the proposed whole grain-rich
definition by emphasizing more whole
(100 percent) grains. One respondent
64 See page 18. U.S. Department of Agriculture
and U.S. Department of Health and Human
Services. 2020–2025 Dietary Guidelines for
Americans. 9th Edition. December 2020. Available
at: https://www.dietaryguidelines.gov/.
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asked if schools can receive ‘‘credit’’ if
they offer 100 percent whole grains
(which exceed the 50 percent threshold
to qualify as whole grain-rich) in order
to offer more enriched grains. A school
district urged USDA to consider an
approach that would require schools to
offer more whole grains, such as brown
rice and bread from whole wheat flour,
as opposed to ‘‘processed and
manufactured products.’’ A form letter
suggested USDA consider developing a
requirement for fiber, noting that grains
are a top source of fiber in school meals.
Similarly, one advocacy group
suggested a carbohydrate-to-fiber ratio
standard to help schools identify more
healthful grain products.
Conversely, other respondents
suggested that USDA decrease the
current 80 percent whole grain-rich
threshold. A school nutrition director
opposed both whole grain proposals
asserting that there is no significant
difference between the two options.
This respondent suggested USDA
instead lower the current whole grainrich threshold from 80 to 50 percent. A
State agency advocated for a 50 to 75
percent whole grain-rich threshold,
suggesting that the current 80 percent
threshold is challenging to meet for
grades K–5 based on the minimum grain
amount required for the week. A few
other respondents, including a State
agency, professional association, school
district, and individual, argued that the
80 percent threshold limits menu
options and claimed that implementing
a 50 percent whole grain-rich
requirement would yield higher student
participation and more menu planning
flexibility. A dietitian agreed, stating
that a 50 percent whole grain-rich
requirement would provide an ‘‘ideal
balance’’ between providing whole
grains and enriched grains in school
meals.
Some respondents who supported a
lower whole grain-rich threshold cited
specific challenges with offering whole
grain-rich foods in school meals,
including ongoing supply chain issues
and concerns about the taste of certain
whole grain-rich products. One
respondent mentioned that schools
continue to experience supply chain
issues and production disruptions on a
weekly basis. In recent years, this
respondent stated that schools have
experienced limited availability of
whole grain-rich items and vendors
have substituted enriched grain
products. When commenting on the
whole grains proposal, a food industry
respondent explained that product
development, reformulation, and recipe
adjustments are time-consuming
activities. This respondent stated that
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rapid reformulation could increase
prices and interfere with consumer
testing. Dietitians from a State agency
noted that identifying whole grain-rich
items is challenging for small school
districts that purchase foods from
consumer markets and small
distributors, which do not have
crediting information readily available.
Relatedly, a few respondents shared
examples of whole grain-rich products
that they asserted are not palatable or do
not work well in school cafeteria
operations, such as egg noodles, pasta,
tortillas, grits, and biscuits. An
individual claimed that students do not
like certain foods manufactured with
whole grain ingredients, and a school
nutrition professional asserted that
students refuse to consume whole grainrich biscuits and snack crackers. A
school district claimed that offering
enriched grains is necessary for student
participation in school meals. Another
respondent expressed that it is critical
for USDA to allow schools to
occasionally offer enriched grains,
adding that some schools encounter
strong regional and cultural preferences
for specific items, such as flour tortillas
and white rice.
Comments on Other Whole Grain-Rich
Proposals
Respondents also provided feedback
on the proposal to codify the definition
of ‘‘whole grain-rich’’ in NSLP, SBP,
and CACFP regulations and the
proposal to update the definition of
‘‘entre´e item’’ in the competitive food
service and standards regulations. One
respondent stated that the proposed
regulatory definition for the term
‘‘whole grain-rich’’ would allow school
nutrition professionals to make more
informed decisions when implementing
the whole grain-rich requirement. An
advocacy group suggested using a
minimum of 51 percent in the definition
to emphasize that a product should have
more whole grains than enriched grains
to qualify as whole grain-rich. A
professional organization shared
concerns that adding the term ‘‘whole
grain-rich’’ in regulation will require
administrative costs for printing
materials and training CACFP operators
and suggested one year to phase-in
implementation. A State agency
inquired about what impact, if any, this
definition would have on how CACFP
program operators identify whole grainrich items.
Regarding the proposal to update the
definition of ‘‘entre´e item,’’ a few
advocacy groups opposed the change
and encouraged USDA to maintain the
whole grain-rich requirement for Smart
Snacks in School entre´e items to ensure
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students purchasing food a` la carte
receive whole grains. Another advocacy
group agreed, stating that while they
understood the intent of the change,
they were concerned about the impact
of schools selling enriched grain entrees
a` la carte. Other respondents, including
a State agency and advocacy groups,
supported the proposed change. One
advocacy group noted that maintaining
the current definition would require
entre´es sold a` la carte to be whole grainrich, which would prevent schools from
selling certain enriched grain NSLP and
SBP entre´es a` la carte. This respondent
felt the proposed change would simplify
the rules, support consistency within
the school meal programs, and improve
compliance. Another advocacy group
agreed, stating this change would be
beneficial to the school meal programs.
Final Rule
Maintain 80 Percent Whole Grain-Rich
Requirement, Based on Ounce
Equivalents
This final rule maintains the current
whole grains requirement that at least
80 percent of the weekly grains offered
in the school lunch and breakfast
programs are whole grain-rich, based on
ounce equivalents. This final rule is
based on stakeholder feedback, which
emphasized the importance of offering
meals that meet local and cultural
preferences by ensuring nutrition
requirements occasionally allow schools
to offer enriched grains. For example,
this final rule allows schools the
flexibility to occasionally serve white
rice or non-whole grain-rich tortillas,
while still promoting whole grain-rich
foods throughout the school week. The
requirement that at least 80 percent of
the weekly grains offered in
reimbursable school lunch and breakfast
programs are whole grain-rich is a
minimum standard, not a maximum.
Schools may choose to increase whole
grain-rich offerings beyond this
minimum standard. It reflects a
practical and feasible way to work
toward the Dietary Guidelines’
recommendation to increase whole
grain consumption. USDA encourages
schools to incorporate whole grains in
their menus as often as possible to
support children’s health.
This final rule also supports USDA’s
commitment to advancing nutrition
security by improving the nutritional
quality of school meals. Research has
demonstrated the importance of school
meals in improving children’s overall
diets, including their whole grain
consumption. For example, USDA
research published in April 2023 found
that after 2013, following
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31991
implementation of the initial whole
grain-rich requirements for school
meals, school food became the most
whole grain-dense food source in
children’s diets.65 USDA expects the
Healthy Eating Index (HEI) component
score for whole grains will remain high
under this final standard. For reference,
in SY 2014–2015, USDA found the HEI
component score for whole grains was
95 percent of the maximum score at
school breakfast and at lunch.66 In SY
2014–2015, all grains offered in the
NSLP and SBP were required to be
whole grain-rich; however, school food
authorities that demonstrated a
hardship in meeting this requirement
had the option to request an exemption
that allowed them to meet a reduced
whole grain-rich requirement: at least 50
percent of all grains offered had to be
whole grain-rich.
USDA acknowledges that some
respondents asserted that the 80 percent
weekly whole grain-rich requirement
does not align with the Dietary
Guidelines recommendations. It is
important to acknowledge that schools
may offer whole grain-rich foods more
often than required throughout the
school week and may choose to offer
individual items that exceed the
minimum threshold to qualify as whole
grain-rich. For example, 100 percent
whole grain bread and brown rice are
examples of foods that exceed the 50
percent minimum criteria to be whole
grain-rich. When schools exceed the
weekly 80 percent requirement or offer
100 percent whole grain food items,
students have greater access to the
nutritional benefits of whole grains,
further aligning school meals with the
goals of the Dietary Guidelines, while
still maintaining some flexibility for
schools to offer enriched grains. USDA
appreciates respondent feedback and
continues to encourage schools to offer
more whole grain-rich foods, including
100 percent whole grain products.
Maintaining the option for schools to
occasionally offer enriched grains
responds to stakeholders who advocated
65 Lin, Biing-Hwan, Travis A. Smith, and Joanne
F. Guthrie. April 2023. Trends in U.S. WholeGrain
Intakes 1994–2018: The Roles of Age, Food Source,
and School Food, ERR–311, U.S. Department of
Agriculture, Economic Research Service. Available
at: https://www.ers.usda.gov/publications/pubdetails/?pubid=106291.
66 See Figure ES.14. And Figure ES.17. School
Nutrition and Meal Cost Study, Final Report
Volume 2: Nutritional Characteristics of School
Meals by Elizabeth Gearan, Mary Kay Fox,
Katherine Niland, Dallas Dotter, Liana Washburn,
Patricia Connor, Lauren Olsho, and Tara Wommak.
Project Officer: John Endahl. Alexandria, VA: April
2019. Available at: https://www.fns.usda.gov/
school-nutrition-and-meal-cost-study. (OMB
Control Number 0584–0596, expiration date 07/31/
2017.)
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Federal Register / Vol. 89, No. 81 / Thursday, April 25, 2024 / Rules and Regulations
for USDA to allow some menu planning
flexibility to provide a variety of grain
offerings, including student, regional,
and cultural favorites.
USDA appreciates comments received
on the alternative days-per-week model
and acknowledges respondents’
concerns that this approach could be
difficult to implement and monitor,
particularly during school weeks that
are shortened due to emergency school
closures, holidays, or scheduled breaks.
USDA also acknowledges that the daysper-week model would require special
consideration for schools with four-day
schedules, or other alternative
schedules. Due to this variability, under
a days-per-week model, there is
potential that the overall amount of
whole grain-rich items offered could
decrease, which could reduce children’s
overall whole grain consumption.
Therefore, USDA has determined that
maintaining the current 80 percent
whole grain-rich requirement is a more
practical approach, as it supports
children’s consumption of whole grains
and has already been operationally
successful in schools nationwide.
Some respondents mentioned that
they implement the current 80 percent
whole grain-rich requirement using a
days-per-week model. Schools may
choose to use this approach under the
final rule, provided they continue to
offer at least 80 percent of all grains as
whole grain-rich, calculated by ounce
equivalents. USDA encourages schools
to implement a strategy that best meets
their operational needs and that meets
the required 80 percent whole grain-rich
threshold.
USDA recognizes that some schools
are concerned about product availability
due to supply chain challenges. USDA
appreciates the importance of
maintaining strong, long-term nutrition
standards and incentivizing the food
industry to develop products that
support schools’ efforts to provide
children with nutritious school meals.
In public comments, industry
respondents and schools shared
progress made toward expanding whole
grain-rich offerings that children enjoy.
For example, industry respondents
mentioned a wide variety of whole
grain-rich products that are currently
available in the K–12 market. One
industry respondent stated that they
offer more than 25 entre´e items
containing whole grain-rich pasta or
breading and suggested that these items
are accepted by students. Another
industry respondent stated that
manufacturers ‘‘have made great
strides’’ in developing whole grain-rich
breakfast options. In addition, USDA
Foods in Schools offers whole grain and
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whole grain-rich products available to
schools in the yearly USDA Foods
Available List.67 For example, whole
grain-rich USDA Foods available to
schools for SY 2023–2024 included 100
percent white whole wheat flour, rolled
oats, pancakes, brown rice, tortillas, and
breaded fish sticks.
USDA technical assistance resources
also support efforts to offer whole grainrich foods in the child nutrition
programs. USDA developed the Whole
Grain Resource for the National School
Lunch and Breakfast Programs 68 as well
as three separate tip sheets on grains in
the Crediting in the Child Nutrition
Programs 69 series that assist school
nutrition professionals with selecting
appropriate whole grain-rich products
for their programs. For CACFP program
operators, USDA developed the
Crediting Handbook for the Child and
Adult Care Food Program 70 that
includes technical assistance for
identifying and serving whole grain-rich
foods served in child and adult care
centers. Additionally, USDA develops
and shares recipes with whole grainrich ingredients for child nutrition
programs that are published on the
Team Nutrition Recipes 71 web page.
Definition of Whole Grain-Rich
This final rule codifies the definition
of ‘‘whole grain-rich’’ in NSLP, SBP,
and CACFP regulations. The term
‘‘whole grain-rich’’ was originally
coined by the National Academy of
Medicine (formerly known as the
Institute of Medicine) in their 2010
report, School Meals: Building Blocks
for Healthy Children,72 and was
previously communicated in USDA
67 U.S. Department of Agriculture, USDA Foods
Available List January 9, 2023. Available at: https://
www.fns.usda.gov/usda-fis/usda-foods-available.
68 U.S. Department of Agriculture, Whole Grain
Resource for the National School Lunch and
Breakfast Programs December 13, 2022. Available
at: https://www.fns.usda.gov/tn/whole-grainresource-national-school-lunch-and-breakfastprograms.
69 U.S. Department of Agriculture, Crediting in
the Child Nutrition Programs May 23, 2023.
Available at: https://www.fns.usda.gov/tn/creditinggrains.
70 U.S. Department of Agriculture, Crediting
Handbook for the Child and Adult Care Food
Program May 8, 2023. Available at https://
www.fns.usda.gov/tn/crediting-handbook-childand-adult-care-food-program.
71 U.S. Department of Agriculture, Team
Nutrition Recipes March 10, 2023. Available at:
https://www.fns.usda.gov/tn/team-nutrition-recipes.
72 See: 7 Recommendations for Nutrient Targets
and Meal Requirements for School Meals.’’ Institute
of Medicine. 2010. School Meals: Building Blocks
for Healthy Children. Washington, DC: The National
Academies Press. https://doi.org/10.17226/12751.
National Academies of Sciences, Engineering, and
Medicine. 2010. School Meals: Building Blocks for
Healthy Children. Washington, DC: The National
Academies Press. https://doi.org/10.17226/12751.
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guidance. This final rule defines the
term in regulation for clarity. The intent
of this change is to codify the existing
definition in NSLP, SBP, and CACFP
regulations. The definition in regulation
reads as follows: Whole grain-rich is the
term designated by FNS to indicate that
the grain content of a product is
between 50 and 100 percent whole grain
with any remaining grains being
enriched. This definition does not
change the meaning of whole grain-rich,
and program operators can continue to
identify whole grain-rich products as
described in current guidance. For
example, CACFP program operators may
continue to use training resources, such
as Identifying Whole Grain-Rich Foods
for CACFP,73 to credit whole grain-rich
foods.
USDA appreciates one respondent’s
suggestion to adjust the definition to
require at least 51 percent of a product
to be whole grain in order to qualify as
whole grain-rich. However, USDA will
finalize the definition as proposed. The
definition codified in this final rule was
originally used in the National Academy
of Medicine’s 2010 report and has been
in place through policy guidance for
more than a decade. Program operators
and the food industry have worked
diligently to comply with this
longstanding definition. For example,
the food industry has worked to develop
products that comply with the existing
definition. While USDA acknowledges
that while the respondent’s suggested
change is minor, finalizing the proposed
definition will avoid any unintended
consequences that could impact
products that comply with the
longstanding definition of whole grainrich. Further, the definition of whole
grain-rich finalized in this rulemaking
derives from the Dietary Guidelines,
which recommends at least half, or 50
percent, of total grains be whole grains.
Entre´e Items Sold a` la Carte
As proposed, this final rule also
updates the definition of ‘‘entre´e item’’
in the competitive food standards
regulations at 7 CFR 210.11(a) to clarify
that both whole grain-rich and enriched
grain entre´es offered as part of a
reimbursable school meal may qualify
as an ‘‘entre´e item’’ when sold a` la carte
as a ‘‘Smart Snack.’’ USDA
acknowledges concerns raised in public
comments about how this change could
result in schools selling enriched grains
to students. However, USDA agrees with
public comments that noted that this
73 U.S. Department of Agriculture, Identifying
Whole Grain-Rich Foods For CACFP June 7, 2023.
Available at: https://www.fns.usda.gov/tn/
identifying-whole-grain-rich-foods-cacfp.
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change would benefit school programs
by simplifying and improving
consistency in regulations,
acknowledging that both whole grainrich and enriched grain entre´es may be
offered at school lunch and breakfast
under the current requirements.
Additionally, USDA clarifies that as
proposed, this change is limited to
school lunch and breakfast program
entre´es sold a` la carte; this change does
not impact the general standards for
competitive foods for all other items
sold a` la carte. The current whole grainrich requirements for all other items
remain in effect under this final rule;
this change is limited to school lunch
and breakfast program entre´es sold a` la
carte on the day of, and the school day
after, they are included on the school
lunch or breakfast menu.
For context, 7 CFR 210.11(c)(3) states
that any entre´e item offered as part of a
reimbursable school meal is exempt
from all competitive food standards if it
is sold a` la carte on the day of, or the
school day after, the entre´e is offered on
a school lunch or breakfast menu. This
exemption helps school nutrition
professionals prevent food waste and
manage their programs. It also helps to
reduce potential confusion about
whether an entre´e served to some
students as part of a school meal can be
purchased a` la carte by other students.
The current definition of ‘‘entre´e item’’
in the competitive food service and
standards regulations specifies that
grain entre´es must be whole grain-rich;
however, under the current
requirements and this final rule, schools
may offer up to 20 percent of their total
grains as enriched grains at school
lunch and breakfast each week.
Therefore, under this final rule, USDA
is finalizing the proposed definition of
‘‘entre´e item’’ so it only references
‘‘grain’’ and therefore includes entre´es
offered with both whole grain-rich and
enriched grains. This change updates
regulations at 7 CFR 210.11(c)(3) to
clarify that whole grain-rich and
enriched grain entre´es offered in a
reimbursable lunch or breakfast may
qualify for the competitive foods entre´e
exemption on the day of, or the school
day after, they are offered on the school
lunch or breakfast menu. For clarity,
this change only applies to grain items
sold as entre´es in reimbursable school
lunches or breakfasts and which qualify
for an exemption to the competitive
food standards. All other grain items
sold a` la carte must comply with the
31993
general standards for competitive foods
at 7 CFR 210.11, which require that
grain items sold a` la carte must meet
USDA’s whole grain-rich criteria.
Accordingly, this final rule amends 7
CFR 210.2, 210.10(c)(2)(iii), 210.11(a)(3),
220.2, 220.8(c)(2)(iii), and 226.2 to
codify the definition of the term ‘‘whole
grain-rich,’’ to maintain the current 80
percent whole grain-rich requirement
for the school lunch and breakfast
programs, and to update the definition
of ‘‘entre´e item’’ to account for the
whole grain-rich and enriched grain
requirements in school meals. Because
this rule finalizes the current whole
grain-rich requirements and
terminology, as proposed, child
nutrition program operators will not
need to make changes to comply with
this provision of this rule.
Section 5: Sodium
Current Requirement
Current regulations at 7 CFR
210.10(f)(3) and 220.8(f) required
schools to meet Sodium Target 1 for
school lunch and breakfast in SY 2022–
2023. For school lunch only, schools
were required to meet Sodium Target
1A in SY 2023–2024. These limits are
shown in the tables below:
National School Lunch Program Transitional Sodium Limits:
Sodium Target 1:
Effective July 1, 2022
< 1,230 mg
:S 1,360 mg
< 1,420 mg
Age/Grade Group
Grades K-5
Grades 6-8
Grades 9-12
Sodium Target lA:
Effective July 1, 2023
< 1,110 mg
:S 1,225 mg
< 1,280 mg
School Breakfast Program Transitional Sodium Limits:
Proposed Rule
USDA proposed to gradually reduce
sodium in the school lunch and
breakfast programs. For school lunch,
USDA proposed three reductions, to be
phased in as follows and as shown in
the chart below:
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• SY 2025–2026: Schools would
implement a 10 percent reduction from
SY 2024–2025 school lunch sodium
limits.
• SY 2027–2028: Schools would
implement a 10 percent reduction from
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SY 2026–2027 school lunch sodium
limits.
• SY 2029–2030: Schools would
implement a 10 percent reduction from
SY 2028–2029 school lunch sodium
limits.
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Grades K-5
Grades 6-8
Grades 9-12
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Sodium Target 1:
Effective July 1, 2022
< 540mg
< 600mg
< 640mg
Age/Grade Group
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Federal Register / Vol. 89, No. 81 / Thursday, April 25, 2024 / Rules and Regulations
Proposed National School Lunch Program Sodium Limits:
Age/Grade
Group
Grades K-5
Grades 6-8
Grades 9-12
Sodium Limit:
Effective July 1, 2025
< 1,000 mg
:S 1,105 mg
< 1,150 mg
For school breakfast, USDA proposed
two reductions, to be phased in as
follows and as shown in the chart
below:
Sodium Limit:
Effective July 1, 2027
<900mg
:S 990 mg
< 1,035 mg
• SY 2025–2026: Schools would
implement a 10 percent reduction from
SY 2024–2025 school breakfast sodium
limits.
Sodium Limit:
Effective July 1, 2029
< 810mg
:S 895 mg
< 935 mg
• SY 2027–2028: Schools would
implement a 10 percent reduction from
SY 2026–2027 school breakfast sodium
limits.
Proposed School Breakfast Program Sodium Limits:
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Public Comments
USDA received over 95,000 comments
on the proposed sodium limits, a
majority of which (about 90,000
comments, including about 400 unique
comments) were categorized as ‘‘mixed’’
or ‘‘other’’ comments. Overall, about
4,900 comments supported sodium
reduction as proposed, including about
180 unique comments, 565 comments
opposed sodium reductions, including
almost 500 unique comments, and over
85,000 comments, nearly all of which
were form letters, supported sodium
reduction beyond what was proposed.
Comments were submitted by State
agencies, school nutrition professionals,
advocacy groups, industry respondents,
professional organizations, school
districts, dietitians, and individuals,
including parents. At a high level,
respondents provided the following
feedback on sodium:
• Lower sodium school meals are
important to children’s health, and
some respondents recommended more
aggressive reductions, such as 15
percent reductions between sodium
limits instead of 10 percent reductions.
• Sodium reduction in school meals
is dependent on product availability,
and product reformulation takes time
and resources.
• Students’ consumption of higher
sodium foods outside of school impacts
their acceptance of lower sodium school
meals.
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• USDA should research the impact
of sodium reduction on school meal
menu planning, student participation,
and student health prior to finalizing
further sodium reductions.
Of the ‘‘mixed’’ comments, several
form letters with over 85,000 combined
submissions supported the sodium
proposals but urged USDA to finalize
additional reductions, beyond the
proposed reductions. Two other
‘‘mixed’’ form letters with over 3,600
submissions recommended that USDA
retain the current sodium limits instead
of moving forward with the proposed
limits. Other comments in this category
offered suggestions, which are described
in more detail below.
Importance of Reducing Sodium
Several respondents discussed the
importance of sodium reduction for
promoting health across the U.S.
population. Advocacy groups
mentioned that proposed limits
represent progress toward improving
children’s health and that reducing
sodium helps prevent chronic disease.
Similarly, a form letter campaign stated
that sodium reduction would ‘‘benefit
all students and further reduce dietrelated diseases.’’ A parent agreed,
emphasizing the importance of
preventative measures to protect
children’s health. An individual
asserted that too much sodium increases
children’s risk of elevated blood
pressure and other chronic health
conditions. An advocacy group stated
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that aligning the proposed rule with the
Dietary Guidelines, including phasing in
sodium reductions, ‘‘sets students up for
lifelong success.’’
Reducing Sodium in School Meals and
Proposed Sodium Limits
As noted, approximately 4,900
respondents supported sodium
reduction, including about 180 unique
comments. A professional organization
and an advocacy group supported the
proposed sodium limits because they
align with FDA’s voluntary reduction
goals for the broader food supply. An
industry respondent appreciated the
sodium proposal because it promotes
the use of more herbs and spices in
place of sodium, which has the
‘‘potential to shift taste preferences.’’ A
few school districts supported the
proposed limits, with one claiming that
manufacturers add an ‘‘unacceptable
and unnecessary’’ amount of sodium to
foods to enhance flavor.
Several respondents provided
feedback on the sodium limit proposed
for SY 2025–2026, or the other proposed
limits. A few school districts and school
nutrition professionals supported the
initial 10 percent sodium reduction for
school lunch and breakfast. A school
nutrition director described the initial
reduction as ‘‘manageable’’ for schools
and manufacturers. An industry
respondent agreed that USDA should
finalize the initial reduction for both
programs and expressed their
commitment to implement FDA’s
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Grades K-5
Grades 6-8
Grades 9-12
Sodium Limit: Effective
July 1, 2027
< 435 mg
< 485 mg
< 520 mg
ER25AP24.079</GPH>
Sodium Limit: Effective
July 1, 2025
< 485 mg
< 540 mg
< 575 mg
Age/Grade Group
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voluntary sodium reduction goals to
reduce sodium in their K–12 products.
Additional respondent feedback on the
proposed implementation dates and
number of sodium reduction limits is
described below.
Over 500 comments opposed sodium
reductions, the majority of which were
unique comments. Some respondents
claimed that, due to student taste
preferences, it would be difficult to
maintain student acceptance of meals
under the proposed sodium reductions.
A form letter campaign and other
respondents asserted school meals are
not to blame for students’ excessive
sodium intake, pointing instead to
meals students consume at home and at
other food service establishments. This
form letter added that students’ taste
preferences would not adjust to school
meals with less sodium without sodium
reductions in the foods that students
consume outside of school. Other
respondents suggested that school
nutrition staffing challenges and
reliance on pre-packaged foods make
sodium reduction challenging. For
example, a dietitian suggested that
lower sodium meals may be possible
with more scratch cooking, but many
districts do not have the time or
resources for scratch cooking. Other
respondents, including school districts
and school nutrition professionals,
explained that some schools do not have
a full kitchen or adequate staffing to
prepare meals with less sodium. A few
school districts raised concerns that
further sodium reductions would lead
manufacturers to replace sodium with
chemical preservatives or artificial
flavorings.
Approximately 90,000 comments,
including about 400 unique comments,
provided mixed or other feedback on
sodium reduction. A majority of the
mixed comments fell into two main
categories: those that suggested that
USDA maintain the existing sodium
limits, or more often, those that
suggested that the proposed limits do
not go far enough. For example, two
‘‘mixed’’ form letters with over 3,600
submissions recommended that USDA
retain the existing sodium limits and
expressed concern about the proposed
reductions. A few school nutrition
professionals expressed concerns about
the palatability of lower sodium foods
and manufacturers’ ability to reduce
sodium in their products. A professional
association encouraged USDA to delay
sodium reductions until after
conducting listening sessions with
school nutrition professionals to
determine feasible approaches for
lowering sodium.
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However, other respondents,
including several form letters with over
85,000 combined submissions,
suggested that additional sodium
reduction is needed, asserting that the
proposed limits do not reduce sodium
enough. A form letter campaign
mentioned that the proposed limits
represent progress but stated that the
final limits in the proposed rule do not
fully align with the Dietary Guidelines.
A professional organization and a
school district recommended providing
development opportunities to help
school nutrition professionals prepare
lower sodium meals, offering financial
support for menu changes, and
educating students and families on the
importance of sodium limits.
Product Availability and Industry Input
Numerous respondents shared input
on the availability and development of
lower sodium products. An industry
respondent asserted that the food
industry continues to work to reduce
sodium through ‘‘innovation,
reformulation, and the use of sodium
substitutes’’ but that these changes take
time. Another industry respondent
noted that many manufacturers have
already reformulated under the existing
sodium limits, asserting that some
manufacturers have reduced sodium in
their products by up to 80 percent. A
third industry respondent asserted that
it takes ‘‘on average, three years for
manufacturers to innovate and
reformulate foods and participate in the
school bidding process.’’ A State agency
suggested that industry ‘‘will not be
willing or able’’ to reduce sodium in
their products.
Other respondents raised concerns
about competing priorities within the
food industry. For example, one
industry respondent explained that
resources for reformulation are limited
and manufacturers cannot reformulate
all of their products at the same time.
Another respondent emphasized that
manufacturers continue to face supply
chain and labor challenges and need
time to plan for further sodium
reductions. An industry respondent
affirmed that product reformulations to
reduce sodium can take several months
and involve ‘‘trade-offs’’ such as
reduced shelf-life and increased price.
Another industry respondent added that
during the reformulation process to
reduce sodium content in products,
manufacturers may need to use added
sugars to maintain palatability,
suggesting that a ‘‘careful balance’’ is
needed when targeting these two
ingredients.
Some respondents raised concerns
about sodium levels and naturally
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31995
occurring or ‘‘functional’’ sodium in
foods commonly offered in school
meals. For example, a form letter
campaign, as well as other respondents,
mentioned that naturally occurring
sodium is found in foods such as bread,
milk, cheese, and celery. Regarding
milk, a school nutrition professional
shared that one serving of milk contains
110–125 milligrams of sodium. A few
State agencies and school nutrition
directors asserted that naturally
occurring sodium should be excluded
from the weekly sodium limits. An
industry respondent mentioned that
‘‘salt and sodium provide significant
functionality and [food] safety’’ in
products like cheese. Another industry
respondent expressed that the sodium
limits proposed for implementation in
SY 2027–2028 and beyond would make
it hard for schools to offer plant-based
alternatives that are currently available
in the school meals market, such as
vegetable crumbles and bean patties.
This respondent stated that many plantbased products ‘‘require added sodium
for food quality, palatability, and shelflife purposes.’’ An individual suggested
that condiments be excluded from
weekly sodium limits because not all
students use them.
Other Alternatives Received From
Public Comments
Respondents provided other
suggestions or recommendations for
USDA to consider. A professional
organization suggested allowing sodium
limits to be ‘‘optional’’ and that USDA
encourage schools to meet optional
limits by providing a financial
incentive. Several other respondents,
including school nutrition professionals
and industry respondents, encouraged
USDA to research the impact of sodium
reductions on product availability,
menu planning, food waste, student
acceptance, student health, and student
participation in the school meal
programs. An industry respondent
added that the study should carefully
consider the impacts across all age
groups and at schools of varying sizes.
Proposed Implementation Dates and
Number of Reductions
USDA requested public input on the
following questions about sodium limits
and the proposed implementation
timeframe:
• Does the proposed implementation
timeframe provide appropriate lead time
for manufacturers and schools to
successfully implement the new sodium
limits?
• Do commenters agree with USDA’s
proposed schedule for incremental
sodium reductions, including both the
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number and level of sodium reductions
and the timeline, or suggest an
alternative? Why?
About 300 respondents addressed the
proposed implementation timeframe,
including 66 unique comments. Some
respondents suggested that the proposed
implementation timeframe was
appropriate. One respondent stated that
the gradual approach to sodium
reduction would allow time for
innovation. An advocacy group agreed,
asserting that a gradual approach is
‘‘feasible for schools and the food
industry.’’ A State agency affirmed that
the proposed implementation dates
would allow time for student
engagement, inventory management,
and technical assistance. Another State
agency agreed the proposed
implementation dates provide adequate
lead time for food manufacturers and
schools; however, this respondent also
emphasized that timely publication of
the final rule would be key to successful
implementation. An advocacy group
asserted that the proposed sodium
limits and timeline ‘‘allow schools to
plan, source, and test meals that are
nutritious, palatable to students and
abide by new guidelines.’’
Other respondents expressed that the
timeframe would not provide schools
sufficient time to successfully
implement the proposed limits. A State
agency suggested USDA reconsider the
proposed schedule due to concern about
student acceptance. An industry
respondent suggested that sodium
reduction needs to ‘‘occur more
gradually over the next 20 years or
more.’’ This respondent recommended
there be five years between each sodium
limit to ‘‘allow technology to catch up
to the requirements’’ and to allow
students to become accustomed to lower
sodium meals. A school nutrition
professional recommended extending
the timeframe for sodium reduction over
10 to 15 years. A school district
mentioned that the proposed school
breakfast limits are achievable but the
proposed school lunch limits are ‘‘too
aggressive for manufacturers to
implement.’’ An individual stated that
industry would need at least 3 to 5 years
to develop food items to meet the
proposed sodium limits. Respondents
also provided feedback on the number
and levels of sodium limits included in
the proposed rule. For example, a few
school districts and an advocacy group
recommended that USDA maintain the
current sodium limits, without any
further reductions. A State agency
supported only the initial 10 percent
reduction, asserting that industry and
the U.S. food supply should ‘‘catch up’’
before sodium reduction beyond the
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initial reduction occurs in school meals.
A few industry respondents agreed,
supporting the initial sodium reduction
but recommending that USDA pause on
implementation of subsequent limits
until research is ‘‘completed and
understood.’’ Another State agency
suggested removing the third proposed
sodium limit at lunch and adding more
time in between each reduction. Several
respondents referenced sodium targets
from prior USDA rulemakings,
including Sodium Target 2, which falls
between the first and second proposed
sodium reduction limits.74 For example,
some respondents suggested that
Sodium Target 2 levels would be
achievable for schools, but that sodium
reductions beyond Sodium Target 2
would be too challenging for schools.
One advocacy group suggested
implementing larger, 15 to 20 percent
reductions every two years, instead of
10 percent reductions, or adding a
fourth or fifth sodium reduction to align
with the recommendations from the
Dietary Guidelines.
Suggestions for Best Practice ProductBased Sodium Limits
In addition to feedback on the sodium
limits and implementation dates, USDA
requested public input on the following
questions about developing best
practices for specific products:
• USDA plans to recommend (but not
require) sodium limits for certain
products, such as condiments and
sandwiches, to further support schools’
efforts to procure lower sodium
products and meet the weekly limits.
• For which products should USDA
develop best practice sodium limits?
• What limits would be achievable for
schools and industry, while still
supporting lower-sodium meals for
children?
State agencies, advocacy groups, and
other respondents recommended that
USDA develop best practice sodium
limits for the following products:
• Broths and soups
• Breaded chicken
• Condiments and sauces
• Canned vegetables and pickles
• Deli meat and sandwiches
• Pizza, pasta dishes, and tacos
A State agency supported USDA’s
plans to develop best practice product
74 Sodium Target 2 was established by the 2012
rule. Under the 2012 rule, Sodium Target 2 would
have been implemented in SY 2017–2018; however,
legislative and administrative action prevented
implementation of sodium targets beyond Sodium
Target 1. To view the Sodium Target 2 limits as
established by the 2012 rule, see: U.S. Department
of Agriculture. Nutrition Standards in the National
School Lunch and School Breakfast Programs. (77
FR 4088, January 26, 2012). Available at: https://
www.federalregister.gov/d/2012-1010/p-138.
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sodium limits for certain foods and
encouraged USDA to work with the food
industry to develop the voluntary limits.
This State agency mentioned that best
practice product limits would help State
agencies provide technical assistance
and support to schools working to
reduce sodium. Several respondents,
including a form letter campaign,
opposed best practice product sodium
limits for specific foods; others
suggested that developing best practice
product limits would not be a good use
of time and resources. Some
respondents were concerned that best
practice product sodium limits would
be the ‘‘first stop to product-specific
limit requirements’’ or appeared to be
confused about the intent of the request
for input. To clarify, USDA’s request for
input was intended to inform
recommended (not required) best
practice product sodium limits for
technical assistance purposes. USDA
does not intend to require productbased sodium limits.
Final Rule
In response to feedback from
stakeholders, this final rule provides
schools even more time to gradually
reduce sodium in school meals and
commits to conducting a study on
potential associations between sodium
reduction and student participation. As
recommended by stakeholders,
including a professional organization
representing school nutritional
professionals in the Nation’s largest
school districts, this final rule reduces
sodium in school lunch and breakfast by
approximately 15 percent and 10
percent, respectively. The sodium
reduction finalized in this rule falls
between the first and second sodium
reduction included in the proposed rule
and reflect the Sodium Target 2 levels
established in the 2012 final rule,75 a
level many stakeholders commented
was familiar and achievable. This final
rule codifies the following sodium
limits in the school lunch and breakfast
programs:
• For the next three school years,
through SY 2026–2027, schools will
maintain current sodium limits (Sodium
Target 1A for lunch and Sodium Target
1 for breakfast).
• By SY 2027–2028, schools must
implement an approximate 10 percent
reduction for breakfast and an
approximate 15 percent reduction for
75 U.S. Department of Agriculture. Nutrition
Standards in the National School Lunch and School
Breakfast Programs. (77 FR 4088, January 26, 2012).
Available at: https://www.federalregister.gov/
documents/2012/01/26/2012-1010/nutritionstandards-in-the-national-school-lunch-and-schoolbreakfast-programs.
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lunch from current sodium limits,
depending on the age/grade group.
The current sodium limit and the
sodium reduction finalized in this
rulemaking are shown in the charts
below. The current sodium limits for
school lunch and breakfast will remain
in place through June 30, 2027. Through
the end of SY 2026–2027, schools will
be able to maintain Sodium Target 1A
at lunch and Sodium Target 1 at
breakfast. By July 1, 2027, schools must
implement the sodium reduction shown
in the chart below. The sodium
reduction for school lunch, which
31997
generally contains higher amounts of
sodium than breakfast, will be slightly
larger compared to the sodium
reduction for school breakfast. This
approach allows school nutrition
professionals to focus their sodium
reduction efforts on lunch.
National School Lunch Program Sodium Limits
Age/Grade Group
Current Sodium Limit:
In place through June 30,
2027
:S 1,110 mg
:S 1,225 mg
:S 1,280 mg
Grades K-5
Grades 6-8
Grades 9-12
Sodium Limit: Must be
implemented by July 1,
2027
:S 935 mg
:S 1,035 mg
:S 1,080 mg
School Breakfast Program Sodium Limits
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Grades K-5
Grades 6-8
Grades 9-12
These sodium limits apply, on
average, to lunches and breakfasts
offered during a school week. Sodium
limits do not apply per day, per meal,
or per menu item. A weekly average
allows flexibility for menu planners to
occasionally offer higher sodium meals
or menu items, provided they are
balanced with lower sodium meals and
menu items throughout the week.
While schools are not required to
reduce sodium in school meals until SY
2027–2028, USDA encourages schools
to gradually reduce sodium at lunch and
breakfast prior to the required
reduction. USDA encourages school
nutrition professionals to adjust food
preparation methods, gradually
incorporate more lower sodium foods
throughout the school week and make
menu adjustments to support eventual
implementation of the sodium reduction
codified by this rulemaking.
As detailed in the Public Comments
section, many respondents suggested
that USDA take a more gradual
approach to sodium reduction than
proposed. For example, a professional
organization representing over 112,000
credentialed nutrition and dietetics
practitioners acknowledged the
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Sodium Limit: Must be
implemented by July 1,
2027
:S 485 mg
:S 535 mg
< 570 mg
importance of reducing children’s
sodium intake but recommended a
smaller overall reduction at lunch
compared to the proposed rule and
suggested providing additional time for
implementation. USDA agrees with
comments that noted the importance of
gradually moving toward lower sodium
meals in a way that is achievable for
schools and the food industry and has
incorporated this feedback into the
sodium limits established by this final
rule. USDA also considered current
sodium levels in the U.S. food supply
and time needed for product
reformulation and for student palates to
adjust. The Dietary Guidelines, 2020–
2025 also recognize that ‘‘multiple
strategies should be implemented to
reduce sodium intake’’ across the U.S.
population.76 For example, the Dietary
Guidelines acknowledge that most
sodium comes from salt added during
commercial food processing and
preparation, and note that ‘‘reducing
sodium consumption will require a joint
effort by individuals, the food and
beverage industry, and food service and
retail establishments.’’ 77 As a reflection
of feedback received from schools and
industry partners, the sodium reduction
for school lunch and breakfast
established by this final rule takes a
more gradual approach to lowering
sodium compared to the proposed series
of limits. By finalizing a single sodium
reduction for both school lunch and
breakfast, this rule gives schools and
industry a clear endpoint to work
toward in the near-term.
School nutrition professionals
emphasized that sodium reductions
need to be gradual for schools to be
successful and for students to accept
lower sodium meals and numerous
respondents suggested that at least three
years are needed for product
reformulation. USDA incorporated this
feedback into the sodium reduction
implementation date of July 1, 2027—
over three years after the publication of
this final rule. Additionally, school
76 See page 46. U.S. Department of Agriculture
and U.S. Department of Health and Human
Services. 2020–2025 Dietary Guidelines for
Americans. 9th Edition. December 2020. Available
at: https://www.dietaryguidelines.gov/.
77 See page 46 and page 102. U.S. Department of
Agriculture and U.S. Department of Health and
Human Services. 2020–2025 Dietary Guidelines for
Americans. 9th Edition. December 2020. Available
at: https://www.dietaryguidelines.gov/.
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:S 600 mg
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nutrition professionals, advocacy
groups, and other respondents
encouraged USDA to study the impact
of sodium reductions on student
participation in the school lunch and
breakfast programs. Respondents were
concerned, for example, that students
would choose to bring meals from home
instead of participating in the school
lunch and breakfast programs if sodium
is further reduced in the programs.
Therefore, in response to requests from
stakeholders, USDA will examine
school meal sodium reduction efforts
and monitor student participation data.
As noted above, USDA received
numerous comments referencing
sodium requirements from prior
rulemakings—specifically, the 2012
final rule. USDA considered these
comments, as well as implementation of
prior rulemakings, to inform the sodium
limits in this final rule. A professional
organization representing school
nutrition professionals in the Nation’s
largest school districts suggested that
Sodium Target 2 from the 2012 rule
could be achievable if food
manufacturers have an endpoint to work
toward. This respondent did not
recommend going beyond Sodium
Target 2 limits in this rulemaking.
Another respondent cited data
suggesting that in SY 2014–2015, prior
to the pandemic and related supply
chain challenges, the average school
lunch was ‘‘already well below’’
Sodium Target 1 and the average school
breakfast was already meeting Sodium
Target 2. This is similar to findings
discussed in FNS’ Successful
Approaches to Reduce Sodium in
School Meals study, conducted prior to
the pandemic in 2016 and 2017, which
described ‘‘a high rate of success in
meeting the Target 1 sodium standards,’’
with many school food authorities
‘‘making significant progress toward or
reaching [Sodium] Target 2.’’ 78 A
school district commenting on the
proposed rule maintained that they
‘‘would be fine with the [Sodium]
Target 2 guidelines,’’ adding that
Sodium Target 2 was ‘‘achievable and
students enjoyed the food we provided
prior to COVID.’’ Another school district
agreed, suggesting that its ‘‘sodium
averages are currently at or below
[Sodium] Target 2 for both lunch and
breakfast.’’ However, this school district
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78 Gordon,
E.L., Morrissey, N., Adams, E.,
Wieczorek, A. Glenn, M.E., Burke, S & Connor, P.
(2019). Successful Approaches to Reduce Sodium
in School Meals Final Report. Prepared by 2M
Research under Contract No. AG–3198–P–15–0040.
Alexandria, VA: U.S. Department of Agriculture,
Food and Nutrition Service. Available at: https://
fns-prod.azureedge.us/sites/default/files/resourcefiles/Approaches-ReduceSodium-Volume1.pdf.
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noted that student feedback and product
availability have prevented decreases
beyond Sodium Target 2. In response to
prior rulemakings stakeholders have
also encouraged USDA to allow more
time for gradual sodium reduction,
including recommending that USDA not
go beyond Sodium Target 2. Based on
this feedback, USDA expects that
gradually phasing in limits that reflect
the Sodium Target 2 will be achievable
for schools. This rulemaking gives
schools and industry a clear endpoint to
work toward in the near-term, while
providing sufficient time for all
stakeholders to prepare for
implementation. It also responds to
proposed rule comments that suggested
that Sodium Target 2 levels are
achievable, but that USDA not go
beyond the Sodium Target 2 limits in
this rulemaking.
USDA also appreciates comments that
supported sodium reduction in school
meals to benefit children’s overall
health. While this final rule does not go
as far as the proposed rule in reducing
sodium, the sodium limits finalized in
this rulemaking represent significant
progress. The proposed sodium limits,
which were informed by FDA’s
voluntary sodium reduction goals,
would have reduced sodium in school
lunches by 30 percent and school
breakfasts by 20 percent. As detailed in
the proposed rule, to develop the
proposed limits, USDA used the average
short-term FDA targets for foods
commonly served in school lunch and
breakfast to calculate a baseline menu
goal for weekly sodium limits for each
meal; this calculation resulted in an
initial 10 percent reduction from the
transitional sodium limits. The
proposed rule built on this initial
reduction with two additional
reductions at lunch and one additional
reduction at breakfast. USDA
acknowledges that many respondents
supported sodium reduction beyond
what was proposed. However, many
stakeholders, including school nutrition
professionals and industry, expressed
concern about meeting sodium levels
beyond Sodium Target 2. The sodium
limits finalized in this rule respond to
stakeholder feedback by considering
concerns that respondents raised around
student acceptance of meals and the
need for product reformulation, which
many respondents suggested takes about
three years.
This final rule reduces sodium in
school lunch and breakfast by
approximately 15 percent and 10
percent, respectively, achieving or
surpassing the first proposed reduction
informed by FDA’s voluntary sodium
reduction goals while incorporating
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stakeholder input. The sodium
reduction finalized in this rule falls
between the first and second sodium
reduction included in the proposed
rule, and this final rule gives school
nutrition professionals additional time
to reach the new limits. The sodium
limits finalized in this rulemaking also
reflect a prior limit that school nutrition
professionals and industry are familiar
with and have worked toward in the
past. As noted above, in SY 2014–2015,
many school food authorities were
making significant progress toward
meeting Sodium Target 2. A single
sodium reduction for the school lunch
and breakfast programs responds to
stakeholders who suggested that one
reduction for each program would be
more attainable for schools and industry
compared to the proposed series of
reductions that would have spanned
several years. Further, the
implementation date for sodium
reduction aligns with the weekly dietary
limit for added sugars finalized in this
rulemaking, allowing school nutrition
professionals to implement both
changes at the same time, rather than
tracking multiple implementation dates.
USDA recognizes that continuing to
reduce sodium in school meals is
important to improve nutrition security,
and USDA will use information from its
forthcoming study to inform future
sodium reduction efforts. While schools
and industry partners have made
progress in sodium reduction over the
years, USDA acknowledges that there
are opportunities for improvement. The
Dietary Guidelines also acknowledge the
importance of reducing sodium intake
in achieving a healthy dietary pattern.79
According to the Dietary Guidelines,
over 95 percent of children ages 2–18
exceed recommended sodium levels.80
Consistent with the goals of the Dietary
Guidelines, this final rule supports
efforts to improve children’s dietary
patterns by gradually reducing sodium
limits in school meals. Importantly, this
final rule also considers operational
feasibility, such as the need for
manufacturers to reformulate products
to support implementation of reduced
sodium limits. As detailed above, the
Dietary Guidelines acknowledge that
most sodium consumed in the United
States comes from salt added during
79 See page 76. U.S. Department of Agriculture
and U.S. Department of Health and Human
Services. 2020–2025 Dietary Guidelines for
Americans. 9th Edition. December 2020. Available
at: https://www.dietaryguidelines.gov/.
80 See page 77. U.S. Department of Agriculture
and U.S. Department of Health and Human
Services. 2020–2025 Dietary Guidelines for
Americans. 9th Edition. December 2020. Available
at: https://www.dietaryguidelines.gov/.
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commercial processing, meaning that
‘‘multiple strategies should be
implemented to reduce sodium intake to
recommended limits.’’ 81 This final rule
represents a step toward that gradual,
ongoing improvement; USDA agrees
with public comments that noted the
importance of continual progress toward
reducing sodium in American’s diets.
Additionally, the gradual approach to
sodium reduction finalized in this rule
aligns with FDA goals and governmentwide efforts to reduce sodium intake for
the U.S. population. USDA understands
that complementary efforts to reduce
sodium across the entire U.S. food
supply are important to the success of
school meal sodium reductions; these
efforts are discussed in more detail
below, under Food and Drug
Administration Voluntary Sodium
Reduction Goals. USDA is committed to
supporting schools’ efforts to lower
sodium, recognizing that reducing
sodium intake is critical for chronic
disease prevention and children’s health
as they grow into adulthood.
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Food and Drug Administration
Voluntary Sodium Reduction Goals
To develop the proposed rule and this
final rule, USDA considered FDA’s
voluntary sodium reduction goals,
which aim to reduce sodium across the
U.S. food supply, in the context of
school meals. FDA is taking an iterative
approach to sodium reduction, which
involves establishing sodium targets,
monitoring progress, evaluating
progress, and engaging stakeholders.
FDA recommended voluntary targets,
issued in October 2021, be met in 2.5
years and expects to issue revised
subsequent targets in the next few years
to facilitate a gradual, iterative process
to reduce sodium intake. Similar in
some respects to FDA’s short term
sodium reduction targets, this final rule
establishes a single limit sodium
reduction for both the school lunch and
breakfast programs for the near-term.
Like FDA’s efforts to monitor and
evaluate progress, as mentioned above,
USDA will examine sodium reduction
efforts in school meals assess the
potential impacts of these reductions on
program operations and participation.
USDA expects that the gradual
approach to sodium reduction finalized
in this rule will set schools and students
up for success, as research 82 indicates
81 See page 46 and page 102. U.S. Department of
Agriculture and U.S. Department of Health and
Human Services. 2020–2025 Dietary Guidelines for
Americans. 9th Edition. December 2020. Available
at: https://www.dietaryguidelines.gov/.
82 McGuire S. Institute of Medicine. 2010.
Strategies to Reduce Sodium Intake in the United
States. Washington, DC: The National Academies
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gradual sodium reductions are more
acceptable to consumers. Aligning
school meal sodium limits with FDA’s
voluntary sodium reduction goals may
help support children’s acceptance of
school lunches and breakfasts with less
sodium, as the school meal reductions
will occur alongside sodium reductions
in the broader U.S. food supply.
Naturally Occurring and ‘‘Functional’’
Sodium
In public comments, several
respondents raised concerns about
naturally occurring sodium in foods
such as bread, milk, and celery. As
noted above and in the proposed rule,
the sodium limits in this rulemaking are
informed by FDA’s voluntary sodium
reduction goals. In developing these
goals, FDA ‘‘carefully studied the range
of popular foods in today’s marketplace
to see what reductions are possible’’ and
considered ‘‘the many functions of
sodium in food, including taste, texture,
microbial safety and stability.’’ 83 This
means that FDA’s goals are not intended
to focus on foods (e.g., milk) that
contain only naturally occurring
sodium, but rather, to focus on foods
where actionable reductions in sodium
are feasible. USDA appreciates public
comments about naturally occurring
sodium in school meals. The sodium
limits in this final rule, which are
informed by FDA’s voluntary sodium
reduction goals, account for naturally
occurring sodium levels in foods and
beverages in the current food supply.
In addition to public comments about
naturally occurring sodium, USDA
appreciates public comments about
‘‘functional’’ sodium. Many respondents
requested that USDA account for
‘‘functional’’ sodium in this rulemaking.
This is similar to feedback included in
Successful Approaches to Reduce
Sodium in School Meals, where
manufacturers raised concerns about
‘‘functional’’ sodium which plays a role
in food shelf life and spoilage.84 In
particular, manufacturers worried that
Sodium Target 3 may be so low in
sodium that it would affect their ability
to produce products such as bakery
Press. Adv Nutr. 2010 Nov;1(1):49–50. doi.org/
10.3945/an.110.1002. Epub 2010 Nov 16. PMID:
22043452; PMCID: PMC3042781.
83 U.S. Food and Drug Administration. Sodium
Reduction. Available at: https://www.fda.gov/food/
food-additives-petitions/sodium-reduction.
84 Gordon, E.L., Morrissey, N., Adams, E.,
Wieczorek, A. Glenn, M.E., Burke, S & Connor, P.
(2019). Successful Approaches to Reduce Sodium
in School Meals Final Report. Prepared by 2M
Research under Contract No. AG–3198–P–15–0040.
Alexandria, VA: U.S. Department of Agriculture,
Food and Nutrition Service. Available at: https://
www.fns.usda.gov/nslp/successful-approachesreduce-sodium-school-meals-study.
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31999
items, where sodium serves a functional
purpose (e.g., salt to strengthen gluten).
As noted in the study, while Sodium
Target 2 seemed to be ‘‘achievable’’ by
some manufacturers, Sodium Target 3
was considered ‘‘infeasible’’ by nearly
all manufacturers, who raised concerns
about the impact on food preparation
and storage.85 The Dietary Reference
Intakes for Sodium and Potassium 86
also acknowledge the functional role
sodium plays in the food supply,
indicating that ‘‘the major sources of
sodium in the diet come from foods in
which sodium chloride serves a
functional purpose, including baked
goods, processed meats, and cheese.’’
Similar to examples cited in public
comments, the Dietary Reference
Intakes for Sodium and Potassium point
out that sodium plays a role in
preserving and fermenting foods,
altering the texture of foods, and
enhancing flavor. However, based on
the evidence available, the Dietary
Reference Intakes conclude that
continued efforts to reduce sodium
intake in the population are warranted.
USDA appreciates the concerns that
respondents raised regarding functional
sodium. Respondents noted the role
sodium plays in food safety, texture,
and flavor, and emphasized the
importance of considering these factors
when determining sodium limits in the
school meal programs. USDA
considered and accounted for these
comments when developing this final
rule. Because the sodium limits
finalized in this rulemaking are higher
than those included in the proposed
rule, USDA has concluded that the
sodium limits in this final rule
adequately account for ‘‘functional’’
sodium content in foods offered in
school meals while still supporting
efforts to reduce sodium intake among
children. Further, the sodium limits in
this rule do not approach Sodium Target
3, which manufacturers expressed
85 Gordon, E.L., Morrissey, N., Adams, E.,
Wieczorek, A. Glenn, M.E., Burke, S & Connor, P.
(2019). Successful Approaches to Reduce Sodium
in School Meals, Volume II: Detailed Study
Findings. Prepared by 2M Research under Contract
No. AG–3198–P–15–0040. Alexandria, VA: U.S.
Department of Agriculture, Food and Nutrition
Service. Available at: https://www.fns.usda.gov/
nslp/successful-approaches-reduce-sodium-schoolmeals-study.
86 National Academies of Sciences, Engineering,
and Medicine; Health and Medicine Division; Food
and Nutrition Board; Committee to Review the
Dietary Reference Intakes for Sodium and
Potassium; Oria M, Harrison M, Stallings VA,
editors. Dietary Reference Intakes for Sodium and
Potassium. Washington (DC): National Academies
Press (US); 2019 Mar 5. 11, Sodium Dietary
Reference Intakes: Risk Characterization and
Special Considerations for Public Health. Available
at: https://www.ncbi.nlm.nih.gov/books/
NBK545448/#sec_ch11_2.
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particular concern within the study
Successful Approaches to Reduce
Sodium in School Meals, as noted
above. Finally, as noted, these sodium
limits are informed by FDA’s voluntary
sodium reduction goals which account
for functional sodium levels in foods
and beverages in the current food
supply. With these higher sodium
limits, school nutrition professionals
will have room to include foods with
naturally occurring or ‘‘functional’’
sodium on their menus, including foods
that are popular among children.
In summary, the overall weekly
sodium limits for school meals finalized
in this rule take into account levels of
sodium needed to accommodate
continued service of healthful foods
with naturally occurring and functional
sodium. Therefore, foods and beverages
containing naturally occurring and
functional sodium are not exempt from
these sodium limits; rather, the sodium
limits in this final rule account for such
forms of sodium. USDA estimates that
under this rule, schools will continue to
be able to serve popular foods and
beverages containing naturally
occurring and functional sodium with
similar frequency as they do currently.
While this rulemaking gradually
reduces the overall weekly sodium
levels in school meals, the limits
finalized in this rule allow for foods and
beverages with naturally occurring and
functional sodium. USDA anticipates
that manufacturers will continue to
explore all avenues of sodium
reduction, including product
reformulation and new technologies to
reduce sodium, and encourages these
efforts. As detailed below, USDA also
expects that menu planners will play an
important role in gradually reducing
sodium levels in school meals over
time. USDA anticipates that this gradual
reduction in weekly average sodium
limits will continue to allow menu
planners flexibility to offer meals and
menu items that children enjoy.
Ongoing Support for Sodium Reduction
Implementation
Successfully reducing sodium in
school meals will require the
commitment and dedication of all
school meals stakeholders. For its part,
USDA remains committed to ensuring
that menu planners receive the support
and technical assistance needed to offer
students meals that comply with the
sodium limits in this rulemaking. USDA
will evaluate progress toward reducing
sodium in school meals, as well as in
the broader food supply, on an ongoing
basis. School nutrition professionals
advocated for more gradual sodium
reductions to allow menu planners time
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to modify menus and to give children’s
palates time to adapt; this rule provides
that additional time. Additionally,
USDA is committed to providing
ongoing support to schools through
efforts like the HMI Initiative, Team
Nutrition grants, Farm to School grants,
and tailored technical assistance. USDA
welcomes stakeholder input on
successful strategies to reduce sodium
in school meals, and the additional
assistance and guidance needed from
USDA to support these efforts. Further,
USDA expects that planned research on
sodium reduction in school meals will
help to inform future sodium
reductions.
Best Practice Product-Based Sodium
Limits
USDA appreciates comments that
provided suggestions for best practice
product-based sodium limits. Consistent
with the proposed rule, this final rule
does not require product-based sodium
limits for specific foods and beverages;
however, USDA will issue guidance on
best practice product limits for high
contributors of sodium in school meals
and will incorporate FDA’s voluntary
sodium reduction goals. This guidance
is intended to help schools procure
lower sodium products for their weekly
lunch and breakfast menus. Best
practice limits provided in future
guidance will be recommendations, not
required limits.
Accordingly, this final rule
establishes sodium limits found at 7
CFR 210.10(c) and (f)(4) and 7 CFR
220.8(c) and (f)(4) of the regulations. As
noted, schools will maintain existing
sodium limits (Sodium Target 1A at
lunch and Sodium Target 1 at breakfast)
through June 30, 2027. Schools will not
need to make any changes to comply
with the sodium provision of this final
rule until July 1, 2027, when the sodium
reduction included in this final rule
must be implemented.
Section 6: Meats/Meat Alternates at
Breakfast
Current Requirement
Current regulations at 7 CFR
220.8(c)(2) require three food
components for a complete school
breakfast: fruits, grains, and fluid milk.
There is no meats/meat alternates
component required at breakfast;
therefore, under the current SBP meal
pattern, a meat/meat alternate offered at
breakfast credits toward the weekly
grains requirement. Under current
regulations, schools may substitute a 1.0
ounce equivalent of meat/meat alternate
for a 1.0 ounce equivalent of grains,
after meeting the daily minimum grains
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requirement.87 Meats/meat alternates 88
may also be offered as ‘‘extra’’ food
items at breakfast. ‘‘Extra’’ food items
are not part of the reimbursable school
meal, but do count toward the weekly
dietary specifications for calories,
saturated fat, sodium, and trans fat.
Proposed Rule
In the 2020 proposed rule, USDA set
forth a combined meats/meat alternates
and grains component. Under the
proposal, schools would have the option
to serve meats/meat alternates, grains, or
a combination of both, depending on
school and student preferences. The
2020 proposed rule also proposed to
remove the requirement for schools to
offer 1.0 ounce equivalent of grains each
day at breakfast. Instead, the daily and
weekly ounce equivalency requirements
for the combined component could be
met with meats/meat alternates, grains,
or a combination of both.
Public Comments on 2020 Proposed
Rule
USDA received 556 comments on the
2020 proposed rule about the combined
meats/meat alternates and grains
component at breakfast, a majority of
which were categorized as ‘‘mixed’’ or
‘‘other’’ comments. Overall, 95
comments supported the proposal,
including 86 unique comments, and 41
comments were opposed, including 38
unique comments.
Proponents, including State agencies,
industry respondents, advocacy groups,
and school districts, asserted that a
combined meats/meat alternates and
grains component would increase the
variety of appealing breakfast options
available to schools. Proponents
maintained that this change would
deliver protein-rich breakfasts that
students enjoy, which they argued could
encourage student participation and
reduce food waste. One school district
noted that parents and guardians often
request school breakfasts with more
protein and less added sugars. Other
respondents agreed, noting that this
change could decrease the added sugars
in school breakfasts.
Proponents maintained that the
proposal would simplify regulations
and menu planning. Industry and
advocacy groups that supported this
change asserted that the current
minimum grains requirement is
burdensome and prevents some schools
from offering meats/meat alternates at
87 Under current regulations, the minimum daily
grains requirement for each age/grade group at
breakfast is 1.0 ounce equivalent.
88 ‘‘Meat alternates’’ include cheese, eggs, yogurt,
nuts and seeds, tofu and soy products, and beans
and peas.
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breakfast. One school district suggested
this change would allow for more
creative menu planning. Others,
including State agencies and advocacy
groups, provided examples of foods that
schools could offer more easily under
this change, such as yogurt parfaits,
turkey sausage, and vegetable omelets.
One respondent mentioned that proteinrich breakfast sandwiches could be
offered as grab-and-go items for
students. Another respondent noted that
protein foods are ‘‘a great way to start
the day’’ and an option that students
enjoy.
Some respondents, including
advocacy groups and individuals, were
concerned that this change could lead to
an increase in schools offering meat
products that are high in saturated fat
and sodium. Opponents suggested that
consuming too much meat has adverse
health effects, and some advised USDA
that ‘‘processed meats should be very
limited or not consumed at all’’ in
school meals. Other respondents,
including industry respondents,
cautioned against removing the
minimum grains requirement, citing the
health benefits of grains and noting that
grains are an important source of fiber.
However, proponents emphasized that a
wide variety of nutritious meats/meat
alternates may be offered in school
breakfasts. Further, one advocacy group
emphasized that the current weekly
saturated fat and sodium restrictions
would limit the amount of processed
meat items. A school district agreed,
suggesting that the dietary specifications
for calories, sodium, and saturated fat
already constrain the amount of animal
fats that can be offered each school
week.
Some respondents offered
modifications to the proposal. For
example, an individual argued that each
school breakfast should require grains
and meats/meat alternates, while a State
agency suggested USDA allow schools
to serve meats/meat alternates without a
grain three times per week, so that two
times per week, schools must meet a
minimum grains requirement. An
industry respondent suggested a
minimum weekly (rather than daily)
grains requirement. Advocacy groups
and individuals suggested placing
specific calorie and sodium limits on
meats served at breakfast; presumably,
in addition to the weekly calorie and
sodium limits already in place for
school breakfasts. While several
respondents noted that this proposal
would help address concerns about
added sugars in school breakfast, some
respondents, including a State agency,
recommended that USDA also place
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limits on specific grain items that are
high in added sugars.
Final Rule
This final rule codifies the combined
grains and meats/meat alternates meal
component at breakfast and removes the
requirement for schools to offer 1.0
ounce equivalent of grains each day at
breakfast. Schools may offer grains,
meats/meat alternates, or a combination
of both to meet this combined
component requirement, based on
ounce equivalents. The minimum daily
requirement (1.0 ounce equivalent) and
minimum weekly requirements (7.0–9.0
ounce equivalents, depending on the
age/grade group) for the combined
component remains the same; however,
this rule allows schools to meet the
daily and weekly requirements by
offering grains, meats/meat alternates, or
a combination of both to meet minimum
ounce equivalents.
Schools are not required to make any
changes to menus under this provision.
However, this change gives menu
planners more flexibility and options to
plan breakfast menus that meet student
preferences and are compatible with
meal service models, cost
considerations, and other local factors.
Schools have discretion to decide what
combination of grains and/or meats/
meat alternates to offer at breakfast to
meet the minimum ounce equivalents.
The Dietary Guidelines recommend
including both grains and protein foods
in healthy eating patterns.89 As such,
USDA encourages schools to offer a mix
of grains and meats/meat alternates at
breakfast throughout the school week.
USDA appreciates comments
submitted in response to the 2020
proposed rule that highlighted the
importance of reducing added sugars in
school meals. This feedback, and later
feedback gathered through USDA’s
stakeholder engagement campaign in
summer 2022, informed USDA’s
proposals to limit added sugars in
school meals. USDA agrees with
respondents that allowing schools more
flexibility to offer meats/meat alternates
at breakfast will support
implementation of the new added
sugars limits outlined in Section 2:
Added Sugars.
As discussed in Section 4: Whole
Grains, at least 80 percent of the weekly
89 The Dietary Guidelines include
recommendations for ‘‘food groups—vegetables,
fruits, grains, dairy, and protein foods—eaten at an
appropriate calorie level and in forms with limited
amounts of added sugars, saturated fat, and
sodium’’. U.S. Department of Agriculture and U.S.
Department of Health and Human Services. Dietary
Guidelines for Americans, 2020–2025. 9th Edition.
December 2020. Available at: https://
www.dietaryguidelines.gov/.
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grains offered at school breakfast must
be whole grain-rich, and the remaining
grain items offered may be whole grainrich or enriched. Schools that choose to
offer a mix of grains and meats/meat
alternates at breakfast will calculate the
required whole grain-rich offerings
based on the total amount of grains
offered at breakfast during the week, by
ounce equivalents.
According to USDA’s School
Nutrition and Meal Cost Study,90 among
children who participate in the SBP as
opposed to skipping breakfast or eating
at home, appealing food was among the
top three reasons for student
participation. Relative to school lunch,
current school breakfast participation is
low. As suggested by respondents,
providing school nutrition professionals
with more flexibility to offer a variety of
breakfast foods that students enjoy
could encourage student participation.
For example, this rule allows schools to
offer scrambled eggs, a fruit cup, and
low-fat milk as a complete breakfast.
USDA understands concerns raised by
some respondents regarding meat
products that are high in saturated fat
and sodium. The dietary specifications
for calories, saturated fat, and sodium
remain in place under this rule, and as
detailed in Section 5: Sodium, this rule
implements an additional sodium
reduction in school meals. USDA agrees
with respondents that suggested that the
dietary specifications encourage schools
to choose options that are low in
saturated fat and sodium. According to
USDA’s School Nutrition and Meal Cost
Study, the most common categories of
meats/meat alternates offered in school
breakfasts in SY 2014–2015 were cheese
and yogurt.91 USDA encourages schools
90 See Table 5.2. Mean Percentage of Observed
Trays including Specific Foods and Mean
Percentage of Food Wasted in SBP Breakfasts. U.S.
Department of Agriculture, Food and Nutrition
Service, Office of Policy Support, School Nutrition
and Meal Cost Study, Final Report Volume 4:
Student Participation, Satisfaction, Plate Waste,
and Dietary Intakes by Mary Kay Fox, Elizabeth
Gearan, Charlotte Cabili, Dallas Dotter, Katherine
Niland, Liana Washburn, Nora Paxton, Lauren
Olsho, Lindsay LeClair, and Vinh Tran. Project
Officer: John Endahl. Alexandria, VA: April 2019.
Available at: https://www.fns.usda.gov/schoolnutrition-and-meal-cost-study.
91 The most common categories of meat/meat
alternates offered at breakfast in SY 2014–2015
were cheese (offered on 5.4 percent of observed
trays) and yogurt (offered on 5.0 percent of observed
trays). U.S. Department of Agriculture, Food and
Nutrition Service, Office of Policy Support, School
Nutrition and Meal Cost Study, Final Report
Volume 2: Nutritional Characteristics of School
Meals by Elizabeth Gearan, Mary Kay Fox,
Katherine Niland, Dallas Dotter, Liana Washburn,
Patricia Connor, Lauren Olsho, and Tara Wommak.
Project Officer: John Endahl. Alexandria, VA: April
2019. Available at: https://www.fns.usda.gov/
school-nutrition-and-meal-cost-study.
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opting to serve meats/meat alternates at
breakfast to offer a wide variety of
nutrient-dense options, including
vegetarian options such as yogurt low in
added sugars; 92 breakfast bean burritos;
and eggs. USDA acknowledges
respondent requests to limit ‘‘processed
meats’’ in the SBP. However, the dietary
specifications for calories, saturated fat,
and sodium already limit the amount of
meats with added salt that are offered in
school breakfasts. Schools must plan all
meals to meet the dietary specifications,
and these limits provide schools with
flexibility to choose foods that meet
student preferences while staying
within a framework that results in
nutritious meals. USDA will not restrict
the types of meats permitted at
breakfast, beyond existing food crediting
guidelines.
This provision does not change the
breakfast meal pattern requirements for
preschool students. Under 7 CFR
220.8(o), schools serving breakfasts to
children ages 1 through 4 may substitute
meats/meat alternates for the entire
grains component up to three times per
week. However, schools are reminded of
the existing co-mingling flexibilities,
permitted in USDA guidance.93 Schools
that serve meals to preschoolers and K–
5 students in the same meal service area
at the same time may choose to serve
the K–5 breakfast meal pattern under 7
CFR 220.8 to both groups of children.
Accordingly, this final rule amends 7
CFR 220.8(c) introductory text and
(c)(2), to codify the combined grains and
meats/meat alternates component at
breakfast and to remove the requirement
for schools to offer 1.0 ounce equivalent
of grains each day at breakfast. This
change provides schools with more
menu planning flexibility at breakfast.
Schools are not required to change
menus or operations as a result of this
provision.
Section 7: Substituting Vegetables for
Grains in Tribal Communities
Current Requirement
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Current regulations at 7 CFR
210.10(c)(3), 220.8(c)(3), 225.16(f)(3),
and 226.20(f) allow program operators
in American Samoa, Puerto Rico, and
the U.S. Virgin Islands to serve
vegetables such as yams, plantains, or
sweet potatoes to meet the grains or
92 Please see Section 2: Added Sugars, for
information on the new added sugars limit for
yogurt, which will take effect in SY 2025–2026.
93 U.S. Department of Agriculture. Flexibility for
Co-Mingled Preschool Meals: Questions and
Answers, June 30, 2017. Available at: https://
www.fns.usda.gov/school-meals/flexibility-comingled-preschool-meals-questions-and-answers.
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breads component.94 Additionally, this
option is currently available to SFSP
and CACFP sponsors, institutions, and
facilities in Guam. The option to
substitute vegetables for grains or breads
is intended to accommodate cultural
food preferences and to address product
availability and cost concerns in these
outlying areas.
As detailed in Section 1: Background,
USDA sought stakeholder input when
developing the proposed rule. As part of
this effort, USDA conducted listening
sessions with Tribal leaders,
nutritionists, and schools in summer
2022. During these listening sessions,
Tribal nutritionists and schools
expressed concern that the grains
requirements are a poor nutritional
match for Indigenous children because
grains, such as wheat and flour, were
not traditionally a part of their
ancestors’ diets. Tribal nutritionists and
schools requested Indigenous starchy
vegetables be allowed as a grain
substitute, similar to the current option
available for child nutrition program
operators in American Samoa, Puerto
Rico, and the U.S. Virgin Islands, and
for SFSP and CACFP sponsors,
institutions, and facilities in Guam.
Proposed Rule
In response to stakeholder input,
USDA proposed to add tribally operated
schools, schools operated by the Bureau
of Indian Education, and schools
serving primarily American Indian or
Alaska Native children to the list of
schools at 7 CFR 210.10(c)(3) and
220.8(c)(3) that may serve vegetables to
meet the grains requirements. For SFSP
and CACFP, USDA proposed to revise 7
CFR 225.16(f)(3) and 226.20(f) to allow
sponsors, institutions, and facilities, as
applicable, that serve primarily
American Indian or Alaska Native
children to substitute vegetables for
breads or grains. USDA also proposed to
revise the current regulatory text for
NSLP, SBP, SFSP, and CACFP to clarify
that this provision allows the
substitution of traditional Indigenous
vegetables, such as prairie turnips. In
the proposed SFSP regulatory text,
USDA also removed outdated references
to the Trust Territory of the Pacific
Islands and the Northern Mariana
Islands. Finally, USDA proposed to
allow all schools, sponsors, institutions,
and facilities in Guam and Hawaii to
substitute vegetables for grains or
breads, to reflect cultural food
preferences.
94 Current SFSP regulations at 7 CFR 225.15(f)(3)
also allow sponsors in Trust Territory of the Pacific
Islands, and the Northern Mariana Islands to
substitute vegetables for breads. However, these
references are outdated.
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Public Comments
USDA received 264 comments on this
proposal, including 143 unique
comments. Of these, 104 supported the
proposal, including 65 unique
comments, none were opposed, and 154
were mixed, including 78 unique
comments. School nutrition
professionals, advocacy groups,
professional organizations, State
agencies, and individuals submitted
comments on the proposal.
Several respondents, including a
national organization representing tens
of thousands of school nutrition
professionals, an advocacy group, State
agencies, individuals, and a form letter
campaign, supported the proposal. One
individual emphasized the importance
of recognizing children’s personal,
cultural, and traditional dietary
preferences. Another individual stated
that offering diverse and inclusive meal
options promotes belonging and
contributes to children’s overall
wellbeing. This respondent further
emphasized the importance of ‘‘taking
steps toward embracing our differences,
celebrating our diversity, and providing
meals that mirror the rich tapestry of
cultures represented within our school
communities.’’ One advocacy group
supported the proposal, suggesting that
it would ‘‘provide equitable access and
outcomes to American Indian and
Alaska Native communities and
children.’’ A State agency described the
proposal as a ‘‘nutritional benefit.’’ A
professional organization affirmed that
serving culturally responsive meals and
snacks is an equitable practice that may
improve meal consumption and
strengthen relationships between
providers, families, and participants.
Some respondents provided feedback
about USDA’s proposal to allow
program operators in Guam and Hawaii
to substitute vegetables for grains or
breads. An advocacy group applauded
USDA for expanding this option to
program operators in Guam and Hawaii.
One professional organization
encouraged USDA to further
accommodate the cultural food
preferences of Native Hawaiians. A few
other respondents expressed confusion
about how the proposal for Guam and
Hawaii would interact with the proposal
for child nutrition program operators on
the mainland that serve primarily
American Indian and Alaska Native
children. To clarify, USDA proposed to
expand this option to all schools,
sponsors, institutions, and facilities in
Guam and Hawaii. Under the proposed
rule, the option to substitute vegetables
for grains or breads would be available
to any child nutrition program operator
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located in Guam or Hawaii. In addition,
under the proposed rule, program
operators on the mainland that serve
primarily American Indian or Alaska
Native children would be eligible to use
this option.
Several respondents suggested
expanding the proposal, in most cases,
advocating for all schools, sponsors,
institutions, and facilities to be allowed
to substitute vegetables for grains or
breads, regardless of their location or
participant demographics. One
advocacy group suggested expanding
the menu planning option to
participants from other demographic
groups who consume starchy vegetables
in place of grains. Going further, a
dietitian suggested that expanding the
option to all schools, sponsors,
institutions, and facilities would
eliminate confusion in menu planning.
An advocacy group agreed, asserting
that vegetable consumption is lacking
among all children and that allowing
this option for all sites would help
reduce sugar, especially at breakfast. A
professional organization supported
expanding this provision to all schools
to avoid excluding any students. An
advocacy group agreed, noting that the
vast majority of American Indian and
Alaska Native children attend public
schools that are not tribally operated or
majority American Indian or Alaska
Native. This respondent concluded that,
as proposed, the option may not have its
intended impact. A few other
respondents raised concerns about the
limited focus of the provision, but
instead of expanding it, recommended
not finalizing it. For example, a State
agency acknowledged the importance of
offering culturally appropriate foods in
the child nutrition programs but raised
equity concerns given the narrow focus
of the provision; this State agency
cautioned against finalizing the
proposal. A school nutrition
professional claimed that, as proposed,
this menu planning option would create
division and confusion regarding who
can implement the provision. A few
respondents offered other suggestions. A
form letter suggested that USDA require
vegetables offered in place of grains to
be prepared in ways that align with
traditional preparations, such as baking
or boiling. A professional organization
suggested that USDA limit substitutions
under this provision to starchy
vegetables only. This respondent also
advocated for more prescriptive
language on this provision’s eligibility
criteria to preserve program integrity
and ensure the intended populations are
served.
Some respondents requested
clarification or additional support. A
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few respondents, including a State
agency and professional organization,
requested guidance to support
implementation of this provision,
including guidance on determining
whether a program operator qualifies to
use this option. A professional
organization expressed concerns about
possible administrative burden,
specifically for enrolled CACFP sites,
further advocating for this provision to
be expanded to all program operators.
This respondent argued that expanding
this option to all operators would
prevent administrative burden and
promote inclusivity. A form letter
campaign did not cite any specific
concerns, but asked USDA to ensure
that the administrative burden
associated with enacting the change will
be minimal. A State agency asked for
clarification on whether the menu
planning option applies to the infant
meal pattern. This respondent did not
support allowing this option for infants,
explaining that allowing vegetables to
substitute for other food sources in the
infant meal pattern, such as infant
cereal, may reduce critical sources of
iron in an infant’s diet. Another State
agency asserted that USDA would need
to provide clear guidance about the
serving sizes of vegetables that would be
required to meet the grains
requirements.
In the proposed rule, USDA explained
that the list of vegetables included in
the proposed regulatory text was not
exhaustive. However, USDA encouraged
public input on any other vegetables
that should be listed as examples in the
regulatory text, and some respondents
shared feedback. Several advocacy
groups suggested that squash, cassava
(yuca), and taro would be suitable
substitutions for grains and
recommended including them as
examples. A State agency suggested that
Native Hawaiian traditional vegetables
such as taro, poi, breadfruit, Okinawan
sweet potato, and Molokai sweet potato
be included in the regulatory text as
examples of vegetables that may be
substituted for grains. One professional
organization asked USDA to clarify
whether all vegetables can be
substituted for grains. Another
proponent recommended that instead of
allowing any vegetable to substitute for
grains, as proposed, that USDA set
standards about which vegetable
subgroups can be substituted for grains
to ensure that the vegetables are
nutritionally comparable to grains.
In addition to general feedback on the
proposal, USDA requested public input
on additional menu planning options
that would improve the school meal
programs for American Indian and
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Alaska Native children by asking the
following question:
• Are there other specific areas of the
school meal pattern that present
challenges to serving culturally
appropriate meals for American Indian
and Alaska Native children, specifically
regarding any regulatory requirements
in 7 CFR 210.10 and 220.8?
A few respondents provided input on
specific areas of the school meal
patterns that present challenges to
serving culturally appropriate meals.
One State agency identified that barriers
to serving hunted game meats make it
challenging to serve culturally
appropriate meals to American Indian
and Alaska Native children. This
respondent also mentioned that milk is
not a part of the traditional eating
pattern for American Indian and Alaska
Native communities. Similarly, an
individual stated the milk requirement
is challenging to implement due to the
high prevalence of lactose intolerance
among American Indian and Alaska
Native populations. Other respondents
mentioned challenges with food
crediting. A State agency encouraged
USDA to ‘‘simplify the crediting process
for scratch-cooked meals’’ to incentivize
schools to scratch cook culturally
relevant meals. Similarly, an advocacy
group suggested USDA consider a
‘‘simplified’’ crediting model that would
facilitate scratch cooking and
procurement of minimally processed
products. Lastly, a form letter campaign
voiced concerns about the potential for
additional, case-by-case menu planning
options due to the administrative
burden of such a process. Instead, this
form letter recommended that USDA
address any barriers to serving
culturally appropriate meals through
comprehensive changes to the meal
patterns.
Final Rule
The final rule amends 7 CFR
210.10(c)(3) and 220.8(c)(3) to allow
school food authorities and schools that
are tribally operated, operated by the
Bureau of Indian Education, and that
serve primarily American Indian or
Alaska Native children to serve
vegetables to meet the grains
requirement in NSLP and SBP. For
SFSP and CACFP, USDA finalizes the
proposal to revise 7 CFR 225.16(f)(3)
and 226.20(f) to allow sponsors,
institutions, and facilities, as applicable,
that serve primarily American Indian or
Alaska Native participants to substitute
vegetables for grains or breads.
Additionally, this final rule allows all
schools, sponsors, institutions, and
facilities in Guam and Hawaii to serve
vegetables to meet the grains or breads
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requirement, and in the SFSP regulatory
text, removes outdated references to the
Trust Territory of the Pacific Islands and
the Northern Mariana Islands. Lastly, for
all child nutrition programs applicable
to this provision, this final rule clarifies
that any creditable vegetable can be
substituted for grains or breads.
While the proposed rule only listed
‘‘schools’’ in the NSLP and SBP
regulatory text, this final rule clarifies
that this option is available to ‘‘school
food authorities and schools’’ that
qualify. This change responds to
comments that encouraged USDA to
ensure that the administrative burden
associated with enacting the change is
minimal. By allowing implementation at
the school food authority level, this
final rule simplifies use of this option
for school food authorities that qualify
and reduces the documentation burden.
Instead of maintaining documentation
for all qualifying schools, school food
authorities that qualify would maintain
documentation at the school food
authority level.
Program operators in Guam and
Hawaii are not required to submit a
request for approval to use this menu
planning option; it is automatically
available to any school, sponsor,
institution, or facility in Guam or
Hawaii that chooses to use it. Therefore,
upon implementation of this final rule,
all schools, sponsors, institutions, and
facilities located in American Samoa,
Guam, Hawaii, Puerto Rico, or the U.S.
Virgin Islands are eligible for this
option; it is not necessary for program
operators in these specific areas to
maintain documentation to demonstrate
eligibility for this option. However,
school food authorities or schools that
are tribally operated, operated by the
Bureau of Indian Education, or program
operators that serve primarily American
Indian or Alaska Native children must
maintain documentation to demonstrate
that they qualify if they choose to use
this option.
For the NSLP and SBP, the school
food authority is responsible for
maintaining documentation to
demonstrate that the school food
authority or its schools qualify to use
this option. If the school food authority
is tribally operated, is operated by the
Bureau of Indian Education, or serves
primarily American Indian or Alaska
Native students, then the school food
authority would maintain school food
authority-level documentation of
eligibility. If individual schools within
the school food authority qualify for this
option, then the school food authority
would maintain documentation for its
qualifying schools, as applicable. As
described in the proposed rule, school
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food authorities or schools ‘‘serving
primarily American Indian or Alaska
Native children’’ include school food
authorities or schools where American
Indian or Alaska Native children
represent the largest demographic group
of enrolled children. USDA will issue
guidance on acceptable data that can be
used to report student demographics,
which may include participant selfreporting, school data, or census data.
School food authorities must maintain
this documentation for program
reviews. For example:
• For school food authorities that are
tribally operated or operated by the
Bureau of Indian Education, an example
of documentation is a certifying
statement indicating the school food
authority is tribally operated or operated
by the Bureau of Indian Education.
• For schools serving primarily
American Indian or Alaska Native
children, an example of documentation
may be aggregate data of student
demographics, such as participant selfreporting, school data, or census data.
For the SFSP and CACFP, a sponsor,
institution, or facility that chooses to
use this menu planning option must
maintain documentation demonstrating
that the site serves primarily American
Indian or Alaska Native participants.
USDA will issue guidance on acceptable
data that can be used to report
participant demographics, which may
include participant self-reporting,
school data, or census data. For
example:
• For enrolled sites, the sponsor,
institution, or facility determines, based
on participant self-reporting, that
American Indian or Alaska Native
participants represent the largest
demographic group of enrolled
participants.
• For enrolled sites, the sponsor,
institution, or facility provides a
certifying statement indicating that the
site primarily serves American Indian or
Alaska Native participants.
• For non-enrolled sites, the sponsor,
institution, or facility determines that
American Indian or Alaska Native
participants represent the largest
demographic group of participants
served by the site, based on school or
census data.
This final rule allows any vegetable to
substitute for the grains or bread
component. However, USDA
emphasizes the importance of
traditional and culturally relevant
vegetables, and this final rule provides
examples of traditional and cultural
vegetables, such as prairie turnips and
breadfruit, in the revised regulatory text
at 7 CFR 210.10(c)(3), 220.8(c)(3),
225.16(f)(3), and 226.20(f). Respondents
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provided examples such as squash,
cassava (yuca), and taro, all of which
would be traditional and culturally
relevant vegetables that may substitute
for grains or breads under the final rule.
Some respondents asked USDA to
establish vegetable subgroup
requirements for the provision, or to
limit this provision to vegetables
prepared in specific ways. USDA is not
requiring specific vegetable subgroups
or types of preparation in this final rule
to minimize burden for program
operators that choose to use this
flexibility. This approach is imperative
for program operators of the SFSP and
CACFP because SFSP and CACFP meal
patterns do not require vegetable
subgroups and a vegetable subgroup
requirement for this provision could
create barriers to implementation in
these programs. Allowing program
operators the flexibility to offer
vegetables from any subgroup in place
of grains or breads allows for a variety
of vegetables to be offered, many of
which are underconsumed among all
populations.95
A few respondents requested
clarification on specific questions. A
State agency requested clarification on
whether this option would be applicable
to the infant meal pattern. This rule
does extend the option to the infant
meal pattern. Extending the option to
substitute vegetables for grains in the
infant meal pattern allows infants to
also consume foods, and develop taste
preferences, aligned with an Indigenous
diet. USDA recognizes the concern that
allowing this flexibility for infants could
result in a reduced consumption of
critical nutrients, such as iron.
However, the infant meal pattern allows
a variety of foods to meet the required
food components for meals and snacks,
and only currently requires a grain item
at snack when a child is
developmentally ready to accept those
foods. Allowing sponsors, institutions,
and facilities to serve culturally
responsive meals and snacks can
improve meal consumption and
strengthen relationships between
providers, families, and participants.
95 According to the Dietary Guidelines, ‘‘Almost
90 percent of the U.S. population does not meet the
recommendation for vegetables. In addition, with
few exceptions, the U.S. population does not meet
intake recommendations for any of the vegetable
subgroups.’’ Further, according to the Dietary
Guidelines, ‘‘For most individuals, following a
healthy eating pattern will require an increase in
total vegetable intake and from all vegetable
subgroups, shifting to nutrient-dense forms, and an
increase in the variety of different vegetables
consumed over time.’’ See page 31. U.S. Department
of Agriculture and U.S. Department of Health and
Human Services. 2020–2025 Dietary Guidelines for
Americans. 9th Edition. December 2020. Available
at: https://www.dietaryguidelines.gov/.
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USDA appreciates public feedback on
the menu planning options for
American Indian and Alaska Native
children. Overall, respondents
expressed appreciation for USDA’s
efforts to improve the child nutrition
programs for American Indian or Alaska
Native children. In addition to these
supportive comments, several
respondents recommended that USDA
expand the proposed menu planning
option to more, or even all, child
nutrition program operators. USDA
acknowledges that additional schools,
sponsors, institutions, and facilities may
benefit from this provision and
appreciates this feedback. However, as
proposed, this provision was intended
for certain schools, sponsors,
institutions, and facilities. Other
program operators that were not covered
by the proposal, as well as State
agencies responsible for program
monitoring, did not have the
opportunity to provide public comment
on a potential broader change. With the
exception of clarifying that this option
may be applied at the school food
authority level, this final rule does not
expand this option to additional
program operators, beyond those
covered by the proposed rule.
This final rule is intended to support
American Indian or Alaska Native
participants in child nutrition programs
and to uphold USDA’s commitment to
advancing equity, as detailed in the
Department’s Equity Action Plan.96 In
this plan, USDA outlines its
commitment to advancing equity,
including a focus on increasing Tribal
trust. The Equity Action Plan highlights
the importance of considering policy
design and implementation to ensure
Tribal communities have equitable
access to Federal programs and services,
including incorporating Indigenous
values and perspectives in program
design and delivery. While this final
rule does not have as broad of a reach
as some respondents requested, USDA
remains committed to promoting
equitable access to the child nutrition
programs. USDA will continue to work
with its partners to make the child
nutrition programs more inclusive for
all child and adult participants.
Accordingly, this final rule amends 7
CFR 210.10(c)(3) and 220.8(c)(3), to
allow school food authorities and
schools that are tribally operated,
operated by the Bureau of Indian
Education, and that serve primarily
96 U.S.
Department of Agriculture, USDA Equity
Action Plan in Support of Executive Order (E.O.)
13985 Advancing Racial Equity and Support for
Underserved Communities through the Federal
Government, February 10, 2022. Available at:
https://www.usda.gov/equity/action-plan.
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American Indian or Alaska Native
children to the list of schools 97 that may
serve vegetables to meet the grains
requirement. For SFSP and CACFP, this
final rule amends 7 CFR 225.16(f)(3) and
226.20(f) to allow sponsors, institutions,
and facilities, as applicable, that serve
primarily American Indian or Alaska
Native participants to substitute
vegetables for grains or breads. This
final rule also amends 7 CFR
210.10(c)(3), 220.8(c)(3), 225.16(f)(3),
and 226.20(f) to allow all schools,
sponsors, institutions, and facilities in
Guam and Hawaii to serve vegetables to
meet the grains or breads requirement.
These changes provide child nutrition
program operators an optional menu
planning flexibility. Program operators
are not required to change menus or
operations as a result of this provision.
Section 8: Traditional Indigenous Foods
Current Requirement
Information about crediting foods in
the school meal programs is primarily
shared with program operators through
USDA guidance, not through regulation.
While traditional Indigenous foods are
not explicitly mentioned in the school
lunch and breakfast program
regulations, they may be served in
reimbursable school meals in
accordance with USDA guidance.
USDA does not define the term
‘‘traditional foods;’’ however, the
Agriculture Improvement Act of 2014,
as amended (25 U.S.C. 1685(b)(5))
defines traditional food as ‘‘food that
has traditionally been prepared and
consumed by an [American] Indian
tribe’’ and includes the following
example foods in its definition: wild
game meat, fish, seafood, marine
mammals, plants, and berries. USDA
acknowledges that there are 574
federally recognized Tribes in the U.S.
and appreciates the importance of
recognizing the diversity of American
Indian and Alaska Native cultures and
traditions, including food traditions.
In 2015, USDA issued policy
guidance 98 about serving traditional
Indigenous foods in the child nutrition
programs. This guidance explained that
if a food is served as part of a
reimbursable meal, but not listed in the
Food Buying Guide for Child Nutrition
Programs (Food Buying Guide), the
yield information of a similar food or in97 As noted above, USDA currently allows schools
in American Samoa, Puerto Rico, and the U.S.
Virgin Islands to serve vegetables such as yams,
plantains, or sweet potatoes to meet the grains
component. See 7 CFR 210.10(c)(3) and 220.8(c)(3).
98 U.S. Department of Agriculture, Child Nutrition
Programs and Traditional Foods, July 15, 2015.
Available at: https://www.fns.usda.gov/cn/childnutrition-programs-and-traditional-foods.
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house yield 99 may be used to determine
a food’s contribution toward meal
pattern requirements. The 2015
guidance also explained how to credit
certain traditional foods, such as wild
rice, blue cornmeal, and ground buffalo.
In 2023, this guidance, titled Crediting
Traditional Indigenous Foods in Child
Nutrition Programs, was revised to
further clarify how to credit traditional
Indigenous foods and to expand the list
of traditional Indigenous foods that
credit similarly to products already
listed in the Food Buying Guide.
Additional resources, such as USDA’s
fact sheet, Bringing Tribal Foods and
Traditions into Cafeterias, Classrooms,
and Gardens 100 encourage schools to
incorporate traditional Indigenous foods
in school menus.
Proposed Rule
USDA proposed to explicitly state in
regulation that traditional foods may be
served in reimbursable school meals.
The intent of this proposal was to
emphasize USDA’s support for
integrating traditional Indigenous foods
into the school meal programs. While
many traditional Indigenous foods may
already be served in the programs under
existing USDA guidance, USDA
expected that this regulatory change
would help to address the perception
that traditional foods are not creditable,
draw attention to the option to serve
traditional Indigenous foods, and
support local efforts to incorporate
traditional Indigenous foods into school
meals.
Public Comments
USDA received over 200 comments
on the proposal to add ‘‘traditional
foods’’ to the regulatory text. Of these,
168 supported the proposal, including
68 unique comments. While only one
respondent requested no changes, 70
respondents, including 50 unique
comments, provided additional
feedback on the proposal.
Many respondents, including State
agencies, advocacy groups, a national
organization representing tens of
thousands of school nutrition
professionals, school districts, a form
letter campaign, and individuals,
expressed support for the traditional
foods provision and including
traditional Indigenous foods in school
meals. One proponent explained that
including traditional foods in school
99 Information on calculating in-house yield data
may be found on page I–5 of the Food Buying
Guide.
100 U.S. Department of Agriculture, Bringing
Tribal Foods and Traditions Into Cafeterias,
Classrooms, and Gardens, August 2017. Available
at: https://www.fns.usda.gov/f2s/tribal-foods.
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meals allows Indigenous children to
meet their nutritional needs in a way
that connects them with their culture.
Another proponent emphasized the
importance of connecting children with
traditional foods and supported greater
inclusion of traditional foods to help
address health disparities. An advocacy
group suggested the proposal would
provide clarity and support to schools
that want to incorporate traditional
foods into their menus. An individual
stated the proposal is important because
‘‘school meals should reflect the
cultural heritage and values of the
students they serve.’’ Similarly, an
advocacy group suggested that the
proposal would encourage schools to
offer more traditional foods, which can
increase school meal participation and
honor students’ cultural traditions.
Another advocacy group stated the
proposal represents ‘‘progress toward
making school meals standards more
equitable.’’
Several respondents recommended
that USDA broaden the scope of this
provision. For example, a school district
and an advocacy group recommended
that USDA encourage all schools to offer
foods considered traditional to all
cultures, not just American Indian and
Alaska Native communities. Similarly,
several advocacy groups suggested that
USDA consider additional ways meal
pattern requirements can be more
inclusive of all students’ ethnicities and
cultural backgrounds. One advocacy
group encouraged USDA to provide
training and technical assistance, such
as guidance, menus, and recipes, to
support the inclusion of foods
traditional to a variety of cultures.
Another advocacy group stated that
more culturally relevant menu planning
resources would ‘‘support the breadth of
diverse traditions and cultures across
our nation.’’
A few proponents offered suggestions
to help schools fully realize the intent
of this change. An advocacy group
suggested that USDA seek broad input
from community members to ensure
culturally relevant foods are included in
the school meal programs without
unnecessary barriers. A form letter
campaign encouraged USDA to engage
American Indian and Alaska Native
communities when implementing this
provision and stated that the expansion
of traditional and cultural meal options
would advance racial equity. An
advocacy group suggested USDA ensure
that ‘‘traditional foods are readily
available in USDA foods, particularly
through Tribal producers.’’
In addition to requesting general
feedback on the proposal, USDA
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requested public input on the following
questions:
• USDA has provided guidance 101 on
crediting certain traditional foods. Are
there any other traditional foods that
schools would like to serve, but are
having difficulty serving? If so, what
specific challenges are preventing
schools from serving these foods?
• Which traditional foods should
USDA provide yield information for and
incorporate into the Food Buying Guide?
• Is ‘‘traditional foods,’’ as described
in the Agriculture Improvement Act of
2014, as amended (25 U.S.C. 1685(b)(5)),
an appropriate term to use, or do
stakeholders recommend a different
term?
A few respondents provided input on
the first question regarding traditional
foods that are challenging to serve. A
State agency noted that hunted game,
foraged fruits, and freshly caught fish
are challenging to serve due to local,
State, and Federal food safety
requirements. Another State agency
provided feedback from a Tribal school
in their State; the Tribal school
explained that they cannot purchase
venison from their local vendor and
cited challenges serving maple syrup
harvested by community members. One
school nutrition professional mentioned
that they have no difficulty serving
traditional foods in their local area.
Several respondents provided input
on the second question, asking which
traditional foods USDA should consider
adding to the Food Buying Guide. A
professional organization suggested
USDA add wild game including moose,
reindeer, and caribou; plants such as
kelp and Eskimo potatoes; and fruits
such as salmonberries. This respondent
described these foods as nutritious and
affirmed that these specific foods are
important cultural foods for Alaska
Native students. A State agency listed
whitefish, walleye, and hickory nuts as
traditional foods to be added to the Food
Buying Guide. In a few cases,
respondents recommended adding items
that are already included in the Food
Buying Guide, such as cranberries,
chestnuts, venison, and bison.
Some respondents suggested adding
foods traditional to other cultures to the
Food Buying Guide. One advocacy
group recommended USDA expand the
definition of traditional foods to include
all cultures and provided several
suggestions of foods to add, including
bacalao (dried and salted codfish),
broccoflower, chorizo, crowder peas,
101 U.S. Department of Agriculture, Child
Nutrition Programs and Traditional Foods, July 15,
2015. Available at: https://www.fns.usda.gov/cn/
child-nutrition-programs-and-traditional-foods.
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huckleberries, naan, smoked eel, and
ulu. A school nutrition professional
suggested adding Caribbean, Indian, and
Asian foods to the Food Buying Guide.
A few advocacy groups recommended
adding bone broth, nori (dried, edible
seaweed), pupusas, arepas, yucca, and
curry dishes. Another respondent
suggested that USDA credit breadfruit
and taro as grains and cited their
nutritional benefits. An individual and
an advocacy group provided a list of
native Hawaiian foods to include, such
as purple sweet potato, taro, poi,
seaweed, and coconut. For clarification,
coconut, seaweed, poi, breadfruit, and
taro are already included in the Food
Buying Guide.
A few respondents provided input on
the third question, which asked whether
‘‘traditional foods,’’ as defined in the
Agriculture Improvement Act of 2014,
as amended (25 U.S.C. 1685(b)(5)), is an
appropriate term to use in regulation.
An advocacy group and a few State
agencies expressed support for the term
‘‘traditional foods’’ as defined in the
Agricultural Improvement Act of 2014.
Another State agency acknowledged the
importance of cultural foods in school
meals but noted that foods considered to
be ‘‘traditional’’ may have changed over
time and questioned use of this term in
the regulation. An individual
recommended that foods traditional to
Native Hawaiians be considered
‘‘traditional foods’’ for the purpose of
the regulation. A professional
organization encouraged USDA to
expand its use of the term ‘‘traditional
foods’’ to include other cultures, stating
that ‘‘traditional foods should not be
limited to those consumed by an
American Indian Tribe but be inclusive
of other diverse cultures.’’ A State
agency supported inclusion of
traditional foods and emphasized the
importance of a clear explanation of
what qualifies as a traditional food.
Oral comments were submitted
during a Tribal Consultation conducted
by USDA with Tribal leaders in spring
2023. During this session, many
participants expressed support for the
term ‘‘traditional foods’’ as defined in
the Agricultural Improvement Act of
2014 and as used in this provision. One
Tribal leader mentioned that this term is
recognizable among many Tribes.
Consultation participants provided
additional input on school meals. One
Tribal leader acknowledged the
challenge in establishing nutrition
requirements that accommodate all
communities because all Tribes are
different. Another participant expressed
concerns about added sugars and risk
for diabetes and other chronic diseases
among the American Indian and Alaska
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Native populations. This participant
claimed that in their view, improving
the nutritional quality of school meals is
a greater concern than serving
traditional foods. Additionally, Tribal
leaders cited meal costs and
reimbursement rates as barriers to
including more traditional foods in
school menus.
Final Rule
This final rule codifies the proposal to
explicitly state in regulation that
traditional Indigenous foods may be
served in reimbursable school meals.
Regulations at 7 CFR 210.10(c)(7) and
220.8(c)(4) will include the definition of
traditional foods from the Agriculture
Improvement Act of 2014, as amended
(25 U.S.C. 1685(b)(5)), which defines
traditional food as ‘‘food that has
traditionally been prepared and
consumed by an [American] Indian
tribe,’’ including wild game meat, fish,
seafood, marine mammals, plants, and
berries. As with all other foods offered
in school meals, traditional Indigenous
foods will continue to be subject to meal
pattern requirements, including the
weekly dietary specifications. While the
proposed rule used the term ‘‘traditional
foods,’’ in this final rule, USDA uses the
term ‘‘traditional Indigenous foods’’ to
better communicate the focus of this
provision.
USDA appreciates public comments
received in response to this provision
and feedback that stakeholders provided
on serving traditional Indigenous foods
in school meals. USDA recognizes that
stakeholders support diversity in the
child nutrition programs, including
offering foods that are significant to
students of all cultural backgrounds. As
discussed in Section 14: Meal
Modifications, USDA supports efforts to
consider participant preferences when
planning and preparing meals,
including cultural food preferences.
However, for this specific provision,
USDA will use the term ‘‘traditional
Indigenous foods’’ and use the
definition of ‘‘traditional foods’’ from
the Agriculture Improvement Act of
2014 and as referenced in the proposed
rule. Food sovereignty and traditional
foodways are critical in empowering
Tribal communities’ self-determination
and incorporating American Indian and
Alaska Native perspectives into USDA’s
nutrition assistance programs. USDA
will continue to encourage program
operators to develop menus that are
culturally appropriate for all
populations and that meet the needs of
their communities. USDA’s partnership
with the Institute of Child Nutrition
offers resources, such as the Child
Nutrition Recipe Box and additional
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training materials, to support the
integration of cultural foods in child
nutrition programs. Additionally, USDA
Foods in Schools provides a list of
Available Foods each school year for
program operators to purchase locally
grown and produced foods.102
USDA appreciates stakeholder
suggestions for traditional Indigenous
foods, as well as other cultural foods,
that should be added to the Food Buying
Guide. In 2023, USDA added new yield
data for highly requested foods such as
chokecherries and taro to the Food
Buying Guide. Additional traditional
Indigenous foods that respondents
suggested, such as kelp, are described in
the Food Buying Guide as similar to
other food items with comparable yield
information; this information can be
used when crediting similar foods for a
reimbursable meal. Input provided
through public comment will be
beneficial as USDA continues its longterm initiative to identify more
traditional foods to incorporate into the
Food Buying Guide. USDA also
appreciates the importance of
continuing to engage with Tribal leaders
and community members to fully realize
the intent of this change. Tribal
stakeholders and leaders provided
USDA with valuable input on this
rulemaking through listening sessions
and through Tribal Consultation. USDA
greatly appreciates this input and
recognizes the importance of continuing
to work together on other initiatives to
improve the child nutrition programs
for American Indian and Alaska Native
children.
Some respondents suggested that
foods from other cultures be added to
the Food Buying Guide. Many cultural
foods, such as arepas and pupusas, are
creditable in school meal programs if
made with creditable ingredients, such
as corn masa, masa harina, nixtamalized
corn flour, and nixtamalized cornmeal.
Respondents also suggested foods like
curry dishes, which are often prepared
with vegetables and meats/meat
alternates that are already listed in the
Food Buying Guide. USDA appreciates
respondent feedback and continues to
encourage program operators to develop
diverse menus that meet the needs and
preferences of the students they serve.
USDA understands that this change is
just one part of a larger effort to support
the service of traditional Indigenous
foods in school meals and remains
committed to promoting traditional
foodways through its policies and
102 U.S. Department of Agriculture. USDA Foods
Available Foods List for SY 2024. January 9, 2023.
Available at: https://www.fns.usda.gov/usda-fis/
usda-foods-available.
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guidance. USDA’s website, Serving
Traditional Indigenous Foods in Child
Nutrition Programs,103 hosts a
collection of resources to support
program operators working to
incorporate traditional Indigenous foods
in reimbursables meals, including fact
sheets, recipes, crediting tip sheets, and
other resources. This web page provides
guidance on sourcing locally grown and
raised traditional foods. USDA will
continue to update this web page with
additional tools and resources as they
are developed.
Accordingly, this final rule amends 7
CFR 210.10(c)(7) and 220.8(c)(4) to
explicitly state in regulation that
traditional Indigenous foods, in
accordance with current meal pattern
requirements, may be served in
reimbursable school meals. Schools are
not required to change menus or
operations as a result of this technical
change.
Section 9: Afterschool Snacks
Current Requirement
Afterschool snacks may be offered to
children through the NSLP (‘‘NSLP
snacks’’) or through the CACFP
(‘‘CACFP snacks’’). According to the
National School Lunch Act (NSLA, 42
U.S.C. 1766a(d)), the nutrition
requirements for CACFP snacks 104 also
apply to NSLP snacks. However, current
regulations at 7 CFR 210.10(o)(2) that
outline the nutrition requirements for
NSLP snacks served to K–12 children
are outdated and do not reflect current
statutory requirements. This preamble
will refer to afterschool snacks served
by schools under 7 CFR part 210 as
‘‘NSLP snacks.’’
Proposed Rule
USDA proposed to align the nutrition
requirements for NSLP snacks served to
K–12 children (ages 6 through 18) at 7
CFR 210.10(o) with the CACFP snack
requirements, consistent with statute.
Under the proposed rule, the existing
nutrition requirements for NSLP snacks
served to preschoolers and infants,
which already follow CACFP
requirements, would remain in effect.
The proposed rule also included a
terminology change, to remove all
references to ‘‘meal supplements’’ in 7
CFR part 210 and replace them with the
term ‘‘afterschool snacks.’’
Additionally, in the 2020 proposed
rule, Simplifying Meal Service and
103 U.S. Department of Agriculture, Serving
Traditional Indigenous Foods in Child Nutrition
Programs. Available at: https://www.fns.usda.gov/
cn/serving-traditional-indigenous-foods.
104 The nutrition requirements for snacks served
through the CACFP are found at 7 CFR 226.20(c)(3).
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Monitoring Requirements in the
National School Lunch and School
Breakfast Programs,105 USDA proposed
to revise the definition of Child in 7 CFR
210.2, to clarify that children through
the age of 18 may receive NSLP snacks.
The proposal to update the definition of
Child also sought to align program
regulations with statutory requirements
(NSLA, 42 U.S.C. 1766a(b)).
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Public Comments
USDA received 117 comments on the
NSLP snacks proposal in the 2023 rule,
including 111 unique comments. Of
these, 58 supported the proposal, 3 were
opposed, and 56 were mixed. State
agencies, advocacy groups, dietitians,
and individuals submitted comments in
response to this proposal. In addition,
USDA received five comments in
response to the 2020 proposal to revise
the definition of Child; all five
respondents supported the proposed
change.
Regarding the NSLP snacks provision
in the 2023 proposed rule, one dietitian
suggested the proposal would
streamline program requirements,
describing it as a positive change.
Another proponent agreed, noting the
change would align two similar
programs without creating
administrative burden. A third
respondent affirmed the benefits of
aligning program requirements, stating
that the proposed change would be
beneficial for multi-program sponsors,
and a school district that currently
participates in multiple child nutrition
programs agreed. An advocacy group
supported the proposal and described
the CACFP meal pattern as ‘‘nutritious.’’
Another advocacy group supported
changing the term ‘‘meal supplements’’
to ‘‘afterschool snacks,’’ arguing that
‘‘afterschool snacks’’ is easier to
understand. One proponent supported
applying the product-based added
sugars limits for yogurt and breakfast
cereals to NSLP snacks; these limits are
discussed further in Section 2: Added
Sugars. While not directly related to the
proposal, an advocacy group
emphasized the importance of
afterschool programs in general, noting
that children need nutritional support
during the hours after school.
One respondent questioned why it is
necessary to align the NSLP snacks meal
patterns with CACFP. An advocacy
group opposed eliminating grain-based
105 Simplifying Meal Service and Monitoring
Requirements in the National School Lunch and
School Breakfast Programs (85 FR 4094, January 23,
2020). Available at: https://www.federalregister.gov/
documents/2020/01/23/2020-00926/simplifyingmeal-service-and-monitoring-requirements-in-thenational-school-lunch-and-school.
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desserts from NSLP snacks, which they
argued would greatly decrease options
for schools. A few respondents raised
concerns about specific items that are
identified as grain-based desserts and
are commonly served as afterschool
snacks, such as granola and cereal bars.
Several other respondents agreed,
noting that schools could experience
‘‘menu fatigue’’ due to limited options
if grain-based desserts are no longer
permitted as NSLP snacks. A State
agency cautioned that the proposal to
serve at least one whole grain-rich grain
each day may be challenging for NSLP
snacks operators, given that there is
already a whole grain-rich requirement
for school meals. Similarly, another
State agency questioned how the
proposed NSLP snacks whole grain-rich
requirement would interact with the
existing whole grain-rich requirements
for school lunch and breakfast. This
State agency maintained that while they
usually support efforts to align
regulations, some of the differences
between the school meal programs and
CACFP—such as the whole grain-rich
requirements—could lead to confusion.
An industry respondent also encouraged
USDA to reconsider the proposed NSLP
snacks whole grain-rich requirement,
citing concerns about requirements that
are ‘‘complicated’’ and ‘‘hard to follow.’’
Other respondents requested
clarification or offered suggestions. An
advocacy group recommended that
USDA reconsider the serving size
requirements for fruits and vegetables in
afterschool programs, especially for
younger children. This respondent
suggested that the current serving size
for fruits and vegetables (3⁄4 cup) is too
large for elementary schoolchildren.
Another advocacy group encouraged
USDA to provide ‘‘an adequate
timeline’’ for implementation, while an
industry respondent supported training
and technical assistance for schools.
Final Rule
This final rule updates NSLP snacks
meal pattern requirements for K–12
children to reflect CACFP snack
requirements, consistent with the intent
of the National School Lunch Act
(NSLA, 42 U.S.C. 1766a(d)). This change
must be implemented by July 1, 2025.
Program operators have the option, but
are not required, to implement this
change early. Additionally, this rule
finalizes the provision from the 2020
proposed rule to revise the definition of
Child. This change clarifies that
children who are age 18 and under at
the start of the school year may receive
reimbursable NSLP snacks, consistent
with statute (NSLA, 42 U.S.C. 1766a(b)).
As with the proposed rule, this final
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rule changes all regulatory references in
7 CFR part 210 from ‘‘meal
supplements’’ to ‘‘afterschool snacks.’’
This rule does not change requirements
for NSLP snacks served to preschoolers
and infants; existing requirements for
NSLP snacks served to preschoolers and
infants remain in effect.
In a public comment, one respondent
asked why it is necessary for NSLP
snacks meal pattern requirements to
follow CACFP requirements. As noted
in the proposed rule and above, this
change is required by statute. According
to the National School Lunch Act
(NSLA, 42 U.S.C. 1766a(d)), the
nutritional requirements for snacks
served through the CACFP also apply to
afterschool snacks served by schools.
Consistent with statutory requirements,
this final rule updates regulations at 7
CFR 210.10(o)(2) outlining the nutrition
requirements for afterschool snacks
served to K–12 children.
Under the final rule, by July 1, 2025,
NSLP snacks served to K–12 children
must include two of the following five
components:
• Milk
• Meats/meat alternates
• Vegetables
• Fruits
• Grains
The following CACFP snack
requirements for children 6 years and
older also apply to NSLP snacks served
to K–12 children. These requirements
for NSLP snacks must be implemented
by July 1, 2025:
• Only one of the two components
served at snack may be a beverage.
• Milk must be fat-free or low-fat and
may be unflavored or flavored.
• Grain-based desserts do not count
toward the grains requirement.
• Foods that are deep-fat fried on-site
are not reimbursable NSLP snacks.
• As detailed in Section 2: Added
Sugars, breakfast cereals must contain
no more than 6 grams of added sugars
per dry ounce.106
• As detailed in Section 2: Added
Sugars, yogurt must contain no more
than 12 grams of added sugars per 6
ounces (2 grams of added sugars per
ounce).107
106 While existing CACFP regulations limit
breakfast cereals to no more than 6 grams of total
sugars per dry ounce, in this final rule, USDA has
opted to delay implementation of the breakfast
cereals limit in NSLP snacks to SY 2025–2026,
when USDA will implement the added sugars limit
for NSLP, SBP, CACFP, and NSLP snacks.
107 While existing CACFP regulations limit yogurt
to no more than 23 grams of total sugars per 6
ounces, in this final rule, USDA has opted to delay
implementation of the yogurt limit in NSLP snacks
to SY 2025–2026, when USDA will implement the
added sugars limit for NSLP, SBP, CACFP, and
NSLP snacks.
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In the proposed rule, USDA proposed
to apply the per day juice limit and the
per day whole grain-rich requirement
used in the CACFP to NSLP snacks
served to K–12 children. USDA is not
finalizing the proposed per day juice
limit or the proposed per day whole
grain-rich requirement for NSLP snacks
served to K–12 children. Instead, this
final rule applies the weekly juice limit
and the weekly whole grain-rich
requirement used in the school meal
programs to NSLP snacks. This change,
which results in NSLP snacks that are
nutritionally similar to snacks offered
through the CACFP, is due to
operational differences in the
requirements for lunches and breakfasts
served to K–12 children compared to
preschool children. For K–12 children,
the NSLP and SBP require that no more
than half of the weekly fruit or vegetable
offerings may be in the form of juice. As
discussed in Section 4: Whole Grains,
the whole grain-rich requirements for
NSLP and SBP meals served to K–12
students also apply on a weekly, rather
than daily, basis. As pointed out in
public comments, implementing an
additional per day requirement, when
existing juice limitations and whole
grain-rich requirements for NSLP and
SBP already apply per week, would be
confusing for schools that offer students
school meals and NSLP snacks.
Therefore, this final rule instead applies
the following weekly requirements to
NSLP snacks:
• No more than half of the weekly
fruit or vegetable offerings at NSLP
snacks may be in the form of juice.
• At least 80 percent of the grains
offered weekly in NSLP snacks must be
whole grain-rich, based on ounce
equivalents of grains offered.
USDA has determined that this
approach will result in NSLP snacks
that are nutritionally comparable to
snacks offered through the CACFP,
consistent with the intent of the statute,
while avoiding operational complexity.
For example, under this final rule, NSLP
snacks may include juice, but will be
required to offer fruits and vegetables in
other forms. Regarding fruit juice, the
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final rule Child and Adult Care Food
Program: Meal Pattern Revisions
Related to the Healthy, Hunger-Free
Kids Act of 2010 noted that, ‘‘The
Dietary Guidelines recommends that at
least half of fruits should come from
whole fruits and found that children age
1 to 3 years consume the highest
proportion of juice to whole fruits.’’ 108
The NSLP snacks juice limit finalized in
this rulemaking incorporates Dietary
Guidelines 109 recommendations for K–
12 students and considers operational
factors specific to NSLP snacks, as
suggested by public comments.
Specifically, this final rule considers
that NSLP snacks operates alongside the
school lunch and breakfast programs,
which have weekly juice limits.
Additionally, similar to CACFP
requirements, this final rule includes a
whole grain-rich requirement for NSLP
snacks, while permitting enriched
grains, provided that the whole grainrich threshold is met. The intent of the
CACFP whole grain-rich requirement is
to ensure that participants receive at
least one serving of whole grain-rich
grains per day, across all eating
occasions. When considering grain
offerings at school lunch and breakfast,
USDA expects that on most school days,
K–12 children receiving school meals
and NSLP snacks would meet or exceed
one whole grain-rich grain per day.
Consistent with statutory intent, the
108 U.S. Department of Agriculture, Child and
Adult Care Food Program: Meal Pattern Revisions
Related to the Healthy, Hunger-Free Kids Act of
2010, April 25, 2016. Available at: https://
www.federalregister.gov/documents/2016/04/25/
2016-09412/child-and-adult-care-food-programmeal-pattern-revisions-related-to-the-healthyhunger-free-kids-act.
109 ‘‘Although 100% fruit juice without added
sugars can be part of a healthy dietary pattern, it
is lower in dietary fiber than whole fruit. Dietary
fiber is a dietary component of public health
concern. With the recognition that fruit should
mostly be consumed in whole forms, the amount of
fruit juice in the USDA Food Patterns ranges from
4 fluid ounces at the lower calorie levels and no
more than 10 fluid ounces at the highest calorie
levels.’’ See page 87: U.S. Department of
Agriculture and U.S. Department of Health and
Human Services. 2020–2025 Dietary Guidelines for
Americans. 9th Edition. December 2020. Available
at: https://www.dietaryguidelines.gov/.
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32009
weekly whole grain-rich requirement
finalized in this rule improves the
nutritional quality of NSLP snacks and
will result in snacks that are
nutritionally comparable to those
offered in the CACFP. It also responds
to public comments that raised concerns
with the operational feasibility of
implementing a per day whole grainrich requirement in NSLP snacks.
The changes for NSLP snacks served
to K–12 children are reflected in the
NSLP snacks meal pattern chart for K–
12 children (ages 6 through 18) now
included at 7 CFR 210.10(o)(2) of this
final rule. Unlike the NSLP and SBP,
which include three separate age/grade
groups (K–5, 6–8, and 9–12), schools
offering NSLP snacks to K–12 children
will follow a single NSLP snacks meal
pattern for all children ages 6 through
18. Schools are encouraged to serve
larger portions to older children to meet
their increased nutritional needs.
USDA appreciates public input
regarding the serving sizes for fruits and
vegetables in afterschool snacks. This
final rule does not change the serving
sizes for fruits and vegetables in the
snack meal patterns. In CACFP snacks,
for children ages 6 and older, the
serving size for fruits and vegetables
served as part of a snack will continue
to be 3⁄4 cup. In NSLP snacks, for
children in grades K–12, the serving size
for fruits and vegetables served as part
of a snack will also continue to be 3⁄4
cup. Schools are not required to serve
fruits or vegetables as part of a
reimbursable snack; these components
are just two of five options available to
schools. Schools offering NSLP snacks
may choose to serve any combination of
at least two of the five components
(milk, meats/meat alternates, vegetables,
fruits, and/or grains).
In response to requests for
clarification about the changes in this
final rule, the following chart
summarizes the prior regulatory
requirements for NSLP snacks served to
K–12 children compared to the
requirements implemented by this final
rule:
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OLD NSLP Snacks
Requirements for K-12
Children
Total number of snack
components
Snacks must contain two
different components out
of four total components
No regulatory requirements
for fat or flavoring in
NSLP snacks
Fruits and vegetables are
part of a single component
No regulatory juice limits
in NSLP snacks
Milk
Fruit and vegetable
Juice
Whole grain-rich
No regulatory requirements
to offer whole grain-rich
grains in NSLP snacks
Grain-based desserts
No regulatory requirements
for grain-based desserts in
NSLP snacks
No regulatory requirements
for deep-fat fried foods in
NSLP snacks
No regulatory added sugars
limits in NSLP snacks
Deep-fat fried foods
Added sugars
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There are a few differences to point
out for NSLP snacks served to
preschoolers: 111
• Milk fat requirements and flavoring
limitations: milk must be unflavored
whole milk for children age one and
must be unflavored low-fat or
110 While existing CACFP regulations include
total sugars limits for breakfast cereals and yogurt,
in this final rule, USDA has opted to delay
implementation of these limits for NSLP snacks to
SY 2025–2026, when USDA will implement the
added sugars limit for NSLP, SBP, CACFP, and
NSLP snacks.
111 Consistent with existing policy guidance,
schools may choose to follow the K–5 NSLP snack
meal pattern when preschoolers and K–5 students
are co-mingled at meal service. See Flexibility for
Co-Mingled Preschool Meals: Questions and
Answers, June 30, 2017. Available at: https://
www.fns.usda.gov/cn/flexibility-co-mingledpreschool-meals-questions-and-answers.
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NEW NSLP Snacks
Requirements for K-12
Children (Must be
Implemented .July 1, 2025)
Snacks must contain two
different components out of five
total components
Milk must be fat-free or low-fat
and may be unflavored or
flavored
Fruits and vegetables are two
separate components
No more than half (50 percent)
of the weekly fruit and
vegetable offerings in NSLP
snacks are in the form of juice
At least 80 percent of the
weekly grains offered in NSLP
snacks must be whole grainrich, based on ounce equivalents
of grains offered
Grain-based desserts do not
count toward the grains
requirement
Foods that are deep-fat fried onsite are not reimbursable NSLP
snacks
Breakfast cereals must contain
no more than 6 grams of added
sugars per dry ounce and yogurt
must contain no more than 12
grams of added sugars per 6
ounces 110
unflavored fat-free milk for children
ages two through five.
• Juice limitations: full-strength juice
may only be offered to meet the
vegetable or fruit requirement at one
preschool meal or snack per day. For
example, a school serves breakfast,
lunch, and NSLP snack to preschoolers
using the preschool meal patterns for all
meals and snacks. If the school opts to
serve juice to preschoolers at breakfast,
juice may not be served to the
preschoolers during the lunch or NSLP
snack service on the same day.
• Whole grain-rich requirement: at
least one serving of grains per day must
be whole grain-rich. For example, a
school serves a whole grain-rich item to
preschoolers at lunch and chooses to
serve a grain at NSLP snack. In this
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example, the grain served for NSLP
snack would not be required to be
whole grain-rich. However, schools that
provide NSLP snacks to preschoolers
may choose to serve additional whole
grain-rich items, beyond the one serving
per day requirement.
Accordingly, this final rule amends 7
CFR 210.2 to revise the definition of
Child for consistency with statute. This
final rule also amends 7 CFR 210.10(o)
to align NSLP snacks meal pattern
requirements for K–12 children with
CACFP snack requirements, consistent
with the intent of the statute. The
updates to NSLP snack meal pattern
requirements must be implemented by
July 1, 2025.
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Section 10: Substituting Vegetables for
Fruits at Breakfast
Current Requirement
Current regulations at 7 CFR 220.8(c)
and (c)(2)(ii) allow schools to substitute
vegetables for fruits at breakfast,
provided that the first two cups per
week are from specific vegetable
subgroups: dark green, red/orange,
beans and peas (legumes), or ‘‘other’’
vegetable subgroups.112 However, in
recent years, through Federal
appropriations, Congress has provided
schools the option to substitute any
vegetable—including starchy
vegetables—for fruits at breakfast, with
no vegetable subgroup requirements.
This Congressional flexibility has been
offered on a temporary basis and has left
schools without long-term certainty
regarding menu planning options. For
example, in calendar year 2019, schools
were initially granted the flexibility to
offer any vegetables in place of fruit at
breakfast from February 15 through
September 30. This flexibility was
extended by Congress through a
subsequent appropriations bill but was
not granted permanently.113 Most
recently, Congress provided schools the
same flexibility in SY 2022–2023 and
SY 2023–2024, allowing any vegetable
to credit in place of fruits in weekly
breakfast menus.114
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Proposed Rule
In the proposed rule, USDA
acknowledged that it is confusing for
State agencies and schools to have a
requirement in regulation that is
changed periodically through Federal
appropriations. To permanently address
this issue, USDA sought to establish a
durable standard that continues to
encourage vegetable variety at breakfast.
USDA proposed to continue to allow
schools to substitute vegetables for fruits
at breakfast but to change the vegetable
variety requirement. Under the
proposal, schools choosing to offer
vegetables in place of fruits at breakfast
112 See: ‘‘Vegetables’’ page 31. U.S. Department of
Agriculture and U.S. Department of Health and
Human Services. 2020–2025 Dietary Guidelines for
Americans. 9th Edition. December 2020. Available
at: https://www.dietaryguidelines.gov/.
113 See: U.S. Department of Agriculture, School
Breakfast Program: Substitution of Vegetables for
Fruit, March 18, 2019. Available at: https://
www.fns.usda.gov/sbp/substitution-vegetables-fruit
See also: U.S. Department of Agriculture, School
Breakfast Program: Continuation of the Substitution
of Vegetables for Fruit Flexibility, January 22, 2020.
Available at: https://www.fns.usda.gov/sbp/schoolbreakfast-program-continuation-substitutionvegetables-fruit-flexibility.
114 See: U.S. Department of Agriculture,
Consolidated Appropriations Act, 2023: Effect on
Child Nutrition Programs, March 3, 2023. Available
at: https://www.fns.usda.gov/cn/consolidatedappropriations-act-2023-effect-programs.
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one day per school week would have
the option to offer any vegetables,
including a starchy vegetable. Schools
that choose to substitute vegetables for
fruits at breakfast on two or more days
per school week would be required to
offer at least two different vegetable
subgroups during that weekly menu
cycle. In other words, the requirement
to offer a second, different vegetable
subgroup would only apply in cases
where schools choose to substitute
vegetables for fruits at breakfast more
than one day per school week.
In the proposed rule, USDA proposed
to change the name of the ‘‘legumes
(beans and peas)’’ vegetable subgroup to
‘‘beans, peas, and lentils’’ for
consistency with the Dietary Guidelines.
As discussed in Section 20:
Miscellaneous Changes of this final rule,
USDA is finalizing this proposed
terminology change. Therefore, in the
final rule portion of this section, USDA
will refer to the ‘‘beans, peas, and
lentils’’ vegetable subgroup.
Public Comments
USDA received hundreds of
comments on the proposal to change the
vegetable variety requirement when
substituting vegetables for fruits at
breakfast. Of these, 722 supported the
proposal, including 51 unique
comments. Seventeen respondents
opposed the proposal, and 89
respondents provided mixed feedback,
including 58 unique comments.
Comments were submitted by State
agencies, advocacy groups, industry
respondents, school districts, and
dietitians.
Several respondents, including school
nutrition professionals and State
agencies, supported this change,
suggesting that it would allow greater
menu flexibility at breakfast compared
to the current regulatory requirement.
One proponent noted that offering two
different vegetable subgroups at
breakfast during a weekly menu cycle is
achievable and provided examples of
how the proposal could be implemented
during a school week. A couple of
school nutrition professional
organizations stated that this change
would simplify regulations for menu
planners and eliminate confusion. A
State agency agreed and mentioned that
this change would help school nutrition
staff better understand when more than
one vegetable subgroup is required at
breakfast. An advocacy group supported
the proposal and emphasized the
importance of maintaining variety in
vegetable subgroups offered at breakfast,
particularly the inclusion of non-starchy
vegetables. A professional organization
supported the proposal, arguing that
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requiring a variety of vegetable
subgroups at breakfast will prevent
schools from offering the same vegetable
every day. An advocacy group
supported the proposal, describing it as
a ‘‘durable standard that encourages
vegetable variety.’’
Some respondents opposed the
proposal, asserting that it would allow
too much flexibility compared to the
current regulatory requirement. One
advocacy group did not agree with the
proposal, suggesting it would allow
schools to serve vegetables from a single
subgroup up to four days per school
week. For example, this respondent
shared that if a school chose to
substitute vegetables for fruits every
day, the ‘‘school could offer an omelet
with spinach on Monday, but then serve
hash browns, tater tots, or home fries
the other four days of the week.’’ While
it is accurate that under the proposal, a
school substituting vegetables for fruits
at breakfast more than once per school
week would only need to offer two
vegetable subgroups, schools would still
be required to meet the dietary
specifications for calories, saturated fat,
and sodium at breakfast.
Conversely, other respondents felt
that the proposal was too restrictive and
argued that schools should be able to
offer any vegetable in place of fruit at
breakfast, without any vegetable
subgroup requirements. Some
respondents suggested that fruits would
continue to be a popular offering at
breakfast, and when opting to substitute
vegetables, schools should have
maximum flexibility in planning their
menus. One school nutrition
professional organization asserted that
having to monitor vegetable subgroups
adds complexity to the program. This
respondent maintained that when
offering vegetables, schools should have
the option to offer any vegetable without
meeting a variety requirement. Other
food service directors agreed, suggesting
that USDA allow any vegetable to
substitute for fruit at breakfast. A
dietitian cautioned that requiring
schools to offer a variety of vegetable
subgroups throughout the week ‘‘may
disincentivize schools from the offering
of vegetables at breakfast.’’ One industry
respondent expressed that all vegetables
should be permitted to substitute for
fruits at breakfast without limitations or
restrictions, further stating that this
flexibility would ‘‘address the issue
long-term, prevent confusion, and
increase overall vegetable intake within
the program.’’ An individual stated that
continuing to require vegetable variety
would result in schools offering
vegetables that children do not like at
breakfast, increasing plate waste.
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However, this respondent also
maintained that the most popular
vegetables at breakfast are potatoes and
sweet potatoes, which USDA notes are
from two different subgroups: starchy
and red/orange. Therefore, a school that
chooses to substitute vegetables for
fruits could meet the proposed variety
requirement for the school week by
offering these two popular vegetable
options.
Other respondents recommended
alternative approaches or requested
clarification. For example, a
professional organization supported the
proposal to require a variety of
vegetables at breakfast, when schools
choose to substitute vegetables for fruits,
but suggested that USDA limit starchy
vegetables to avoid increasing sodium.
A few advocacy groups recommended
that, in addition to the proposed variety
requirement, USDA should also require
that a single vegetable subgroup cannot
make up more than half of the vegetable
offerings at breakfast per week. These
respondents asserted that this
alternative standard would be less
restrictive than the current regulatory
standard, continue to encourage a
variety of vegetable subgroups, and
ensure that no single vegetable
dominates SBP menus. An industry
respondent opposed allowing any
vegetables to substitute for fruits at
breakfast, arguing that ‘‘fruits contribute
different nutrients than vegetables.’’
Another respondent requested
clarification about the requirements for
vegetable offerings after a school meets
the variety requirement. This
respondent shared that their school
usually offers vegetables as an ‘‘extra
item’’ at breakfast and requested that
this continue to be an option.
A few respondents provided other
comments on the potential impact of the
proposal. For example, an advocacy
group suggested that substituting
vegetables for fruits could help to
reduce the overall sugar content of
school breakfasts. A State agency noted
that school menu planners and State
agency staff would need guidance,
training, and monitoring resources if
this proposal is finalized. Similarly, an
individual suggested that USDA provide
sample menus with ideas to incorporate
a variety of vegetables into the breakfast
program. One respondent raised
concerns that the proposed change
would add paperwork for school
nutrition staff. Conversely, one State
agency maintained that they do not
expect the change to be administratively
burdensome.
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Final Rule
This final rule continues to allow
schools to substitute vegetables for fruits
in the SBP and codifies the proposal to
simplify the vegetable variety
requirement. Under this final rule,
schools choosing to offer vegetables at
breakfast one day per school week have
the option to offer any vegetable,
including a starchy vegetable. Schools
that choose to substitute vegetables for
fruits at breakfast on two or more days
per school week are required to offer
vegetables from at least two different
subgroups. The vegetable subgroups that
schools may choose from include the
following, a defined at 7 CFR
210.10(c)(2)(iii):
• Dark green
• Red/orange
• Beans, peas, and lentils
• Starchy
• ‘‘Other’’ vegetables
USDA acknowledges that some
stakeholders preferred a different
approach. A few respondents requested
that USDA limit how often any one
vegetable subgroup could be offered at
breakfast, with some advocating for a
specific limit on starchy vegetables.
Other respondents encouraged USDA to
remove the vegetable variety
requirement altogether. However, USDA
has determined that it is important to
continue to encourage vegetable variety
when schools choose to offer vegetables
at breakfast. As noted in the proposed
rule, while the Dietary Guidelines
recommend increasing consumption of
vegetables in general, they note that
starchy vegetables are more frequently
consumed by children and adolescents
than the red/orange, dark green, or
beans, peas, and lentils vegetable
subgroups, underscoring the need for
variety. The proposed requirement,
finalized in this rulemaking, provides a
straightforward and durable approach to
support children consuming a variety of
vegetables.
USDA appreciates respondent
requests for clarification about
implementation of this provision, such
as one respondent who requested that
USDA explain what vegetable subgroup
requirements would apply after a school
offers two different subgroups at
breakfast. Under this final rule, after a
school offers vegetables from two
different subgroups, the school can
choose to offer any vegetables at
breakfast—including vegetables from a
subgroup the school has already offered
that school week. For example, a school
can substitute a starchy vegetable for
fruit at breakfast on Monday, then
substitute a dark green vegetable for
fruit at breakfast on Tuesday. The rest
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of the week the school may choose to
substitute any vegetables, including a
dark green or a starchy vegetable, for
fruit at breakfast, since it would have
met the variety requirement by Tuesday.
As requested by comments, USDA will
provide guidance and resources to
support successful implementation of
this provision and to assist schools in
their efforts to offer a variety of
vegetables as part of nutritious school
breakfasts.
This final rule continues to require
schools opting to serve vegetables at
breakfast to offer a variety of subgroups,
and in a way that is less restrictive
compared to the previous regulatory
standard. Consistent with current
regulations, schools are not required to
offer vegetables at breakfast and may
choose to offer only fruits at breakfast to
meet this component requirement.
Schools may also continue to offer
vegetables at breakfast as an extra item,
subject to the weekly dietary
specifications for calories, saturated fat,
sodium, and upon implementation,
added sugars. As suggested by
comments, USDA expects that fruit will
continue to be a popular offering in
reimbursable school breakfasts. While
USDA acknowledges feedback received
about potential administrative burden,
this final requirement does not add any
additional administrative requirements
beyond menu documentation and
production records required for
Administrative Reviews, for schools that
choose to substitute vegetables for fruits
at breakfast.
Accordingly, this final rule amends 7
CFR 220.8(c)(2)(i) and (ii) to change the
vegetable variety requirement for
substituting vegetables for fruits at
breakfast. This change provides schools
with more menu planning flexibility at
breakfast when compared to the current
regulation. Schools that are following
the current regulatory requirement are
not required to change menus or
operations as a result of this provision.
Schools that are using the Congressional
flexibility 115 will need to offer at least
two vegetable subgroups at breakfast, if
offering vegetables in place of fruit at
breakfast more than once per week.
Section 11: Nuts and Seeds
Current Requirement
Current regulations allow nuts and
seeds, and nut and seed butters, as a
meat alternate in the child nutrition
programs. In all child nutrition
115 See: U.S. Department of Agriculture,
Consolidated Appropriations Act, 2023: Effect on
Child Nutrition Programs, March 3, 2023. Available
at: https://www.fns.usda.gov/cn/consolidatedappropriations-act-2023-effect-programs.
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programs, nut and seed butters may
credit for the full meats/meat alternates
component. However, current
regulations limit the crediting of whole
nuts and seeds (or nut and seed pieces)
in some child nutrition programs.
Current lunch and supper regulations
limit nut and seed crediting to 50
percent of the meats/meat alternates
component (7 CFR 210.10(c)(2)(i)(B),
225.16(d)(2) and (e)(5), 226.20(a)(5)(ii)
and (c)(2)). SBP regulations include the
same limit (7 CFR 220.8(c)(2)(i)(B)).
CACFP regulations for breakfast do not
explicitly include the 50 percent limit
for nuts and seeds, but refer to USDA
guidance, which includes the 50 percent
limit (7 CFR 226.20(a)(5)(ii)). Snack
regulations and USDA guidance on
snacks do not include the 50 percent
limit; nuts and seeds may credit for the
full meats/meat alternates component
when offered as part of a snack (7 CFR
210.10(o)(2)(ii), 225.16(e)(5), and
226.20(c)(3). For programs where nut
and seed crediting is limited to 50
percent of the meats/meat alternates
component, program operators choosing
to serve nuts and seeds must serve them
alongside another meat/meat alternate
to fully meet the component
requirement.
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Proposed Rule
USDA proposed to allow nuts and
seeds to credit for the full meat/meat
alternate component in all child
nutrition programs and meals. This
proposal would remove the 50 percent
crediting limit for nuts and seeds at
breakfast, lunch, and supper.
Public Comments
USDA received 389 comments on the
proposed change to allow nuts and
seeds to credit for the full meats/meat
alternates component, including 217
unique comments. Of these, 310
supported the proposal, including 158
unique comments, 10 were opposed,
and 69 were mixed, including 49 unique
comments. State agencies, advocacy
groups, industry respondents, school
districts, dietitians, and individuals
provided input on this proposal.
Several respondents supported the
proposal, including a national
organization representing tens of
thousands of school nutrition
professionals. One proponent
applauded the proposal, noting that
nuts and seeds are good sources of
protein, vitamin E, fiber, and many
minerals. A dietitian agreed,
maintaining that nuts and seeds are
healthy proteins that would provide
variety throughout the week. An
advocacy group added that nuts and
seeds provide healthy fats. Another
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advocacy group representing the CACFP
community indicated that 85 percent of
its members supported the proposal.
Several respondents, including
dietitians, school districts, and a State
agency, suggested that this change
would allow more vegan and vegetarian
options in child nutrition program
meals. An advocacy group described
plant-based entre´es that operators could
serve under this change, such as walnut
and mushroom-based ‘‘taco meat,’’ rice
pilaf with pistachios, and salad with
sunflower seeds. In addition to plantbased options, an advocacy organization
and a State agency noted that this
proposal would allow more shelf-stable
foods to be served in afterschool and
summer meals. Another State agency
suggested that this proposed change
would allow program operators to offer
healthier versions of popular bistro or
snack boxes. An individual stated that
the proposal would allow operators
greater latitude to develop menus that
reflect participant preferences; other
respondents agreed, citing increased
demand for vegetarian meals.
One opponent argued that nuts and
seeds are not adequate to meet the full
meats/meat alternates component
requirement. A few industry
respondents also opposed the proposal,
arguing that in their view, animal
products are more nutritious than
vegetarian foods. However, this
respondent also supported greater menu
planning flexibility and opposed
‘‘mandatory federal limits’’ in the meal
patterns. Another respondent raised
concern about oils in nuts and seeds
and the potential for nuts and seeds to
cause ‘‘digestive distress’’ among some
participants. One respondent suggested
students at their school would not be
interested in meals that include nuts
and seeds as the full meats/meat
alternates component.
Other respondents requested
clarification or offered alternatives to
the proposal. One respondent asked if
nuts would be mandatory, citing food
allergy concerns. Another respondent
supported the change, but
recommended capping the number of
times per week operators could offer
nuts and seeds to promote variety. One
advocacy group suggested that USDA
update its crediting guidance for nuts
and seeds and nut and seed butters,
asserting that the current requirements
are too high. For example, this
respondent argued that the current
requirements result in sandwiches filled
with an inedible amount of nut butter,
making them difficult to chew and
swallow. A State agency recommended
targeting this provision to older
children, citing concerns about choking
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hazards for young children. Similarly,
an advocacy group raised concerns
about the safety and appropriateness of
offering nuts and seeds to very young
children. This respondent also noted
that nut and seed products may be
glazed or sugar coated. An industry
respondent noted that offering nuts may
create menu planning complications
due to the sodium content of some nuts.
However, this respondent still
supported the proposal. Another
respondent requested sample menus
and recipe ideas to support
implementation of this change.
Final Rule
This final rule codifies the proposal to
allow nuts and seeds to credit for the
full meats/meat alternates component in
all child nutrition programs and meals,
removing the 50 percent crediting limit
for nuts and seeds at breakfast, lunch,
and supper. USDA expects this change
to reduce complexity by making the
requirements consistent across programs
and to provide more menu planning
options for program operators.
Child nutrition operators are not
required to make any changes to their
menus to comply with this standard.
Nuts and seeds are not required in child
nutrition program meals, but rather,
continue to be an option for operators.
When offering nuts and seeds, child
nutrition operators may offer them to
meet the full meats/meat alternates
component but are not required to;
operators may choose to offer nuts and
seeds toward only a portion of the
component, alongside another meat/
meat alternate. Although USDA
recognizes that many child nutrition
program operators will continue to offer
nuts and seeds in snacks, or in small
amounts in meals alongside other
meats/meat alternates, this final rule
gives operators increased flexibility to
offer nuts and seeds for the full meats/
meat alternates component in all meals
and snacks.
USDA appreciates comments
regarding the importance of variety in
meals and snacks and expects that
operators will continue to offer a variety
of foods toward the meats/meat
alternates meal component.
Additionally, according to the Dietary
Guidelines, more than half of Americans
do not meet the recommendations for
the nuts, seeds, and soy products
subgroup.116 Therefore, USDA has
116 See ‘‘Protein Foods,’’ page 34. U.S.
Department of Agriculture and U.S. Department of
Health and Human Services. 2020–2025 Dietary
Guidelines for Americans. 9th Edition. December
2020. Available at https://
www.dietaryguidelines.gov/.
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determined that it is not necessary to
limit the number of times nuts and
seeds may be served per week in order
to promote variety within the meats/
meat alternates meal component. As
suggested in public comments, USDA
expects that this change will expand
options for vegetarian and vegan meals
that include nuts, seeds, and nut and
seed butters. As noted in the Dietary
Guidelines, a healthy vegetarian dietary
pattern can be achieved by
incorporating protein foods from plants,
including nuts and seeds; beans, peas,
and lentils; tofu and other soy products;
and whole grains.117
USDA appreciates input regarding the
serving sizes for nuts, seeds, and their
butters. Many factors are considered
when determining crediting amounts for
foods in the child nutrition programs,
including the FDA Standards of
Identity, Dietary Guidelines, and the
USDA Food Safety and Inspection
Service Food Standards and Labeling
Policy. USDA’s Food Buying Guide for
Child Nutrition Programs also assists in
determining the contribution that each
food makes toward meal pattern
requirements. In this final rule and
corresponding guidance, USDA will
maintain current crediting amounts for
nuts and seeds and their butters. In
cases where an operator determines a
portion is too large for a child or adult
participant, it is recommended that nuts
and seeds and their butters be served in
combination with another meat/meat
alternate to meet the full component
requirement.
USDA is mindful of respondent
concerns about choking hazards and has
provided guidance on reducing the risk
of choking in young children.118 As
noted in the proposed rule, nuts and
seeds are generally not recommended to
be served to children ages 1 to 3 because
they present a choking hazard. If served
to very young children, nuts and seeds
should be finely minced. Program
operators should also be aware of food
allergies among participants and take
the necessary steps to prevent exposure.
Section 14: Meal Modifications provides
more information about requirements to
provide meal modifications for
participants with disabilities, which
may include food allergies. Finally, as
noted in the proposed rule, USDA
117 See ‘‘Protein Foods,’’ page 33. U.S.
Department of Agriculture and U.S. Department of
Health and Human Services. 2020–2025 Dietary
Guidelines for Americans. 9th Edition. December
2020. Available at: https://
www.dietaryguidelines.gov/.
118 U.S. Department of Agriculture, Reducing the
Risk of Choking in Young Children at Mealtimes.
September 2020. Available at: https://
www.fns.usda.gov/tn/reducing-risk-choking-youngchildren-mealtimes.
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encourages program operators to offer
nuts, seeds, and their butters in their
most nutrient-dense form, without
added sugars and salt, and schools must
consider the contribution of these foods
to the weekly limits for calories,
saturated fat, and sodium.
Accordingly, this final rule amends 7
CFR 210.10(c)(2)(iv)(B),
220.8(c)(2)(iv)(B), 225.16(d)(2) and
(e)(5), 226.20(a)(5)(ii) and (c)(2) to allow
nuts and seeds to credit for the full
meats/meat alternates component in all
child nutrition program meals,
removing the 50 percent crediting limit
for nuts and seeds at breakfast, lunch,
and supper. This change provides child
nutrition program operators more menu
planning flexibility. Program operators
are not required to change menus or
operations as a result of this provision.
Section 12: Beans, Peas, and Lentils at
Lunch
Current Requirement
Consistent with the Dietary
Guidelines, the school lunch meal
pattern includes five vegetable
subgroups: dark green, red/orange,
beans and peas (legumes), starchy, and
‘‘other’’ vegetables. Current NSLP
regulations at 7 CFR 210.10(c)(2)(iii)
require school food authorities to offer
vegetables from all five subgroups each
school week. Specifically for the beans
and peas (legumes) vegetable subgroup,
schools must offer 1⁄2 cup over the
course of the week at lunch to meet the
vegetable subgroup requirement.
In addition to crediting toward the
vegetable meal component, legumes
may also credit toward the meats/meat
alternates meal component (7 CFR
210.10(c)(2)(i)(E)). Legumes may count
toward either the vegetable meal
component or meats/meat alternates
meal component, but not both
components in the same meal (7 CFR
210.10(c)(2)(iii)). This limit applies
when legumes are offered in a single
dish. When a school offers legumes in
two separate dishes as part of the same
meal, one serving may count toward the
vegetable meal component and one
serving may count toward the meats/
meat alternates meal component, at
menu planners’ discretion.119
119 See
Question 35. U.S. Department of
Agriculture. Meal Requirements Under the National
School Lunch Program and School Breakfast
Program: Questions and Answers for Program
Operators Updated to Support the Transitional
Standards for Milk, Whole Grains, and Sodium
Effective July 1, 2022, March 2, 2022. Available at:
https://www.fns.usda.gov/cn/sp052022-questionsanswers-program-operators.
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Proposed Rule
In the 2020 proposed rule, USDA
proposed to allow legumes offered
toward the meats/meat alternates meal
component to also count toward the
weekly requirement to offer 1⁄2 cup of
the legumes vegetable subgroup per
week at lunch, while maintaining the
total vegetables requirement. As with
the current requirement, under the
proposal, legumes would not count
toward two meal components (vegetable
component and meats/meat alternates
component) at the same time. If a school
opts to count legumes toward the meats/
meat alternates meal component, the
school would need to serve another
vegetable to count toward the daily and
weekly vegetable meal component
requirements. However, under the
proposal, legumes could count toward
the legumes vegetable subgroup
requirement when offered toward the
meats/meat alternates meal component.
Later, in the 2023 proposed rule,
USDA proposed to change the name of
the beans and peas (legumes) vegetable
subgroup in school meal and CACFP
regulations to align with the Dietary
Guidelines, 2020–2025, which changed
the terminology for the vegetable
subgroup to ‘‘beans, peas, and
lentils.’’ 120 As discussed in Section 20:
Miscellaneous Changes, USDA is
finalizing this proposed terminology
change. Therefore, when discussing the
final standard in this section, USDA
will use the term ‘‘beans, peas, and
lentils’’ in place of ‘‘beans and peas
(legumes).’’
Public Comments on 2020 Proposed
Rule
USDA received 103 comments on the
2020 proposed rule about the proposal
to allow beans and peas (legumes)
offered toward the meats/meat
alternates meal component to count
toward the weekly legumes subgroup
requirement, all of which were unique
comments. Of these, 61 supported the
proposal, 28 were opposed, and 14 were
mixed.
One proponent emphasized that the
proposal would not reduce the total
amount of vegetables at lunch, but
would instead help schools offer
legumes. A school district suggested
that this change would allow more
120 The Dietary Guidelines, 2020–2025, changed
the terminology for the ‘‘legumes (beans and peas)’’
vegetable subgroup to ‘‘beans, peas, and lentils.’’
The foods within this vegetable subgroup did not
change. See ‘‘About Beans, Peas, and Lentils,’’ page
31. U.S. Department of Agriculture and U.S.
Department of Health and Human Services. 2020–
2025 Dietary Guidelines for Americans. 9th Edition.
December 2020. Available at: https://
www.dietaryguidelines.gov/.
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menu planning flexibility. Other
proponents agreed, saying this proposal
would help schools offer legumes as
part of an entre´e, as opposed to a side
dish. Some proponents, including an
advocacy group, maintained that
legumes offered as entre´es are more
appealing to children and help reduce
food waste. For example, one dietitian
advised that children may be more
likely to consume a bean and cheese
burrito, and less likely to consume a
scoop of beans from a salad bar.
Similarly, a school district noted that
students at their school prefer bean
dishes such as pupusas, tacos, and
chilis (which they offer as meats/meat
alternates) compared to side dishes like
baked beans and bean salads.
Some opponents seemed to
misunderstand the proposal, assuming
that it would lessen the overall amount
of vegetables offered in school lunch. To
be clear, schools would be required to
offer a separate vegetable to count
toward the daily and weekly vegetable
component requirements when offering
legumes as a meat/meat alternate. One
State agency opposed the proposal,
arguing that it could decrease the total
amount of legumes offered in cases
where schools are currently offering
legumes as a meat/meat alternate in an
entre´e, along with offering legumes in a
side dish as a vegetable. A few State
agencies expressed concern that this
proposal could lead to confusion among
schools, resulting in meal pattern errors.
Several respondents, including State
agencies and an advocacy group,
emphasized that training and technical
assistance would be critical to ensure
this provision is implemented correctly.
One proponent emphasized the
benefits of legumes, which they
described as versatile, inexpensive,
sustainable, and nutritious. Other
respondents, including industry
respondents, agreed, suggesting legumes
are a good source of several important
nutrients, including dietary fiber and
potassium. In general, many
respondents expressed support for
increasing consumption of legumes,
which are currently underconsumed by
children and adolescents (and all other
age groups).121
Final Rule
This final rule codifies the option for
schools to count beans, peas, and lentils
offered as a meat alternate at lunch
toward the weekly beans, peas, and
lentils vegetable subgroup requirement.
121 U.S. Department of Agriculture and U.S.
Department of Health and Human Services. Dietary
Guidelines for Americans, 2020–2025. 9th Edition.
December 2020. Available at: https://
www.dietaryguidelines.gov/.
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Under this option, as with the current
requirement, schools would determine
which overall meal component the
beans, peas, and lentils would count
toward: the vegetable meal component,
or the meats/meat alternates meal
component. This new option will
permit beans, peas, and lentils offered
as a meat alternate to count toward the
weekly beans, peas, and lentils
vegetable subgroup requirement.
However, beans, peas, and lentils
offered as a meat alternate would not
also count toward the daily or weekly
overall vegetable meal component
requirements; schools using this option
would be required to offer additional
vegetables to meet the daily and weekly
vegetable meal component
requirements.
For example, a school offers a wrap
with chickpeas, fresh tomatoes, and
lettuce. In this example, the menu
planner opts to count the chickpeas
toward the meats/meat alternates meal
component. In addition to counting
toward the daily and weekly meats/meat
alternates meal component
requirements, the menu planner could
also count the chickpeas toward
meeting the weekly vegetable subgroup
requirement to offer at least 1⁄2 cup of
beans, peas, and lentils; the school
would not need to offer another
vegetable from this subgroup during that
week. However, during this meal,
because the chickpeas are already
counting toward the meats/meat
alternates meal component, they cannot
also count toward the vegetable meal
component. The menu planner would
instead count the other vegetables
offered in the wrap (tomatoes and
lettuce) toward the daily and weekly
total vegetable meal component
requirements and their respective
vegetable subgroups.
In a different example, a school offers
a black bean and cheese quesadilla. In
this example, the menu planner opts to
count the cheese toward the meats/meat
alternates meal component, and to
count the black beans toward the
vegetable meal component. In this case,
the black beans could count toward the
weekly requirement to offer 1⁄2 cup of
beans, peas, and lentils (vegetable
subgroup requirement), as well as the
daily and weekly total vegetable meal
component requirements, since the
school is offering the beans as a
vegetable and not as a meat alternate.
USDA is mindful of concerns,
particularly from State agencies, that
this provision could be implemented
incorrectly. Public comments from State
agencies expressed concern that when
implementing this provision, schools
may incorrectly double-count beans,
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32015
peas, and lentils toward both the meats/
meat alternates component and
vegetable component in the same meal,
resulting in a missing meal component
at lunch. USDA recognizes the
importance of providing thorough
training and technical assistance to
support implementation of this
provision. Additionally, schools are not
required to use this option and may
instead continue with their current
menu planning approach for beans,
peas, and lentils. This new option is
intended to support schools that wish to
offer more plant-based and vegetarian
options toward the meats/meat
alternates meal component.
Accordingly, this final rule amends 7
CFR 210.10(c)(2)(ii)(C) and (c)(2)(iv)(E)
to allow beans, peas, and lentils offered
toward the meats/meat alternates meal
component to also count toward the
requirement to offer 1⁄2 cup of the beans,
peas, and lentils vegetable subgroup
each week. Beans, peas, and lentils
offered toward the meats/meat
alternates meal component would not
count toward the daily or weekly overall
vegetable meal component
requirements. This change provides
schools with more menu planning
flexibility at lunch. Schools are not
required to change menus or operations
as a result of this provision.
Section 13: Competitive Foods: Bean
Dip Exemption
Current Requirement
Current regulations at 7 CFR 210.11
establish requirements for all foods sold
in schools outside of the school meal
programs. These requirements, known
as competitive food standards, or
‘‘Smart Snacks in School’’ standards,
help to promote healthy food choices
throughout the school day. To comply
with these standards, hereafter referred
to as the Smart Snacks standards, foods
must meet nutrition standards,
including the standards for total fat
established at 7 CFR 210.11(f).
Proposed Rule
USDA proposed to add hummus to
the list of foods exempt from the total
fat standard in the Smart Snacks
regulations. Hummus would continue to
be subject to all other Smart Snacks
standards, including limits for saturated
fat, total sugars (by weight of product),
calories, and sodium. This change
would allow hummus, which is already
permitted as a contributing (creditable)
part of a reimbursable school meal, to be
sold as a Smart Snack to students on
campus throughout the school day,
provided all other Smart Snacks
nutrition standards are met.
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Because there is currently no FDA
standard of identity for hummus, USDA
proposed to add the following definition
of ‘‘hummus’’ to the Smart Snacks
regulations: Hummus means, for the
purpose of competitive food standards
implementation, a spread made from
ground pulses (beans, peas, and lentils),
and ground nut/seed butter (such as
tahini [ground sesame], peanut butter,
etc.) mixed with a vegetable oil (such as
olive oil, canola oil, soybean oil, etc.),
seasoning (such as salt, citric acid, etc.),
vegetables and juice for flavor (such as
olives, roasted pepper, garlic, lemon
juice, etc.). Manufactured hummus may
also contain certain ingredients
necessary as preservatives and/or to
maintain freshness.
Public Comments
USDA received 200 comments on the
proposal to exempt hummus from the
Smart Snacks total fat standard,
including 174 unique comments. Of
these, 145 supported the proposal,
including 119 unique comments, 1 was
opposed, and 54 were mixed. Comments
were submitted by State agencies,
advocacy groups, industry respondents,
school districts, and individuals.
Respondents, including a national
organization representing tens of
thousands of school nutrition
professionals, overwhelmingly
supported the proposal. One proponent
noted that hummus provides many
nutrients, including fiber, protein, iron,
and magnesium. Another proponent
described hummus as a nutritious snack
option and maintained that hummus is
filling and high in protein. An advocacy
group noted that hummus provides
healthy fats and is often served
alongside other nutrient-dense foods,
such as vegetables or whole grains,
while other respondents, including a
State agency, maintained this proposal
would help children incorporate more
legumes into their diets. Another State
agency asserted that this proposal
would allow schools to add a healthy a`
la carte option to their cafeterias. An
advocacy group suggested this proposal
would expand a` la carte options for
vegans and vegetarians.
A few proponents sought
confirmation that the proposed
exemption was limited to the total fat
standard and that other Smart Snacks
standards would continue to apply to
hummus. For example, an advocacy
group supported the proposal, provided
that hummus would continue to be
subject to the saturated fat standard for
Smart Snacks. A State agency requested
clarification that the Smart Snacks
sodium limits would continue to apply
to hummus. To clarify, under the
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proposed rule, hummus would continue
to be subject to all other Smart Snacks
standards, including limits for saturated
fat, total sugars (by weight of product),
calories, and sodium.
A few respondents opposed the
proposal or provided other comments.
One opponent cited concerns about
processed foods, especially those
containing soybean or canola oil. An
advocacy group did not oppose the
change, but suggested children would
not eat hummus. One respondent
wondered if schools could serve carrots
with hummus as a Smart Snacks
compliant combination food.
Although not directly related to the
hummus proposal, other respondents
recommended that USDA exempt other
foods from the Smart Snacks total fat
standard. For example, a few
respondents encouraged USDA to
provide an exception for avocados or
guacamole. Another encouraged an
exemption for salads with dressings,
arguing that salad dressing has a high
percentage of calories from fat, even if
the overall calories in the salad are low.
An industry respondent recommended
that USDA exempt other condiments
from Smart Snacks standards,
suggesting that condiments promote the
consumption of nutrient-dense foods.
One school district suggested that USDA
exempt nut butters from the total fat
standard; to clarify, nuts and seeds and
nut/seed butters are already exempt
from the total fat and saturated fat Smart
Snacks standards (7 CFR
210.11(f)(3)(ii)). This exemption does
not apply to combination foods that
contain nuts and seeds or nut/seed
butters with other ingredients, such as
peanut butter and crackers, trail mix, or
chocolate covered peanuts.
A few respondents provided feedback
on the proposed definition of hummus.
A State agency described the proposed
definition as ‘‘reasonable.’’ Another
respondent pointed out that the word
‘‘hummus’’ has a culturally significant
meaning and suggested USDA use a
different term, such as ‘‘ground beanbased dip.’’ An advocacy group noted
that some types of hummus do not
include ground nut or seed butters. This
respondent noted schools may prefer to
sell hummus without nut or seed butter
as an ingredient, given the potential for
nut or seed allergies. Because of this, the
advocacy group recommended making
nut or seed butter an optional ingredient
in the definition of hummus. A school
district requested that USDA clarify
whether the definition applies only to
hummus made from chickpeas, or
alternatively, if dips that include other
types of beans would qualify for the
exemption.
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Final Rule
In this final rule, USDA is revising the
terminology for this provision based on
public comment. Instead of referring to
‘‘hummus’’ in regulation, this final rule
will refer to ‘‘bean dip.’’ This change
reflects input received through a public
comment, which noted that the word
‘‘hummus’’ already has a culturally
significant meaning and is traditionally
made from chickpeas (rather than any
variety of beans, peas, or lentils). The
change also addresses a school district’s
question about whether this exemption
is limited to hummus made with
chickpeas, or if it can include products
made from other types of beans. Based
on these comments, USDA has
determined a more general term is
preferred. Therefore, this final rule adds
bean dip to the list of foods exempt from
the total fat standard in the Smart
Snacks regulations. This exemption
applies to products marketed as
hummus, as well as bean dips made
from any variety of beans, peas, or
lentils. Bean dip would continue to be
subject to the saturated fat standard for
Smart Snacks, as well as all other Smart
Snacks requirements.
This final rule also codifies the
following definition of ‘‘bean dip’’ in
the Smart Snacks regulations. Under
this definition, bean dip can be made
from chickpeas as well as other varieties
of beans, peas, and lentils: Bean dip
means, for the purpose of competitive
food standards, a spread made from
ground pulses (beans, peas, and/or
lentils) along with one or more of the
following optional ingredients:
• Ground nut/seed butter (such as
tahini [ground sesame] or peanut butter;
• Vegetable oil (such as olive oil,
canola oil, soybean oil);
• Seasoning (such as salt, citric acid);
• Vegetables and juice for flavor
(such as olives, roasted peppers, garlic,
lemon juice); and
• For manufactured bean dip,
ingredients necessary as preservatives
and/or to maintain freshness.
USDA appreciates input that
stakeholders provided on the proposed
definition. In this final rule, USDA has
adjusted the definition to clarify that
bean dip does not need to include all of
the ingredients listed in the definition to
qualify for this exemption. To qualify
for the exemption, a bean dip must
include ground pulses (beans, peas,
and/or lentils), but the remaining
ingredients listed in the definition are
not required. The final definition
clarifies that these remaining
ingredients are optional. A bean dip
may include any combination of one or
more of the remaining optional
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ingredients listed in the definition. For
example, hummus made with
chickpeas, water, tahini, sunflower oil,
lemon juice, and spices (such as garlic,
salt, and crushed red pepper) could be
sold a la carte as a bean dip under this
final rule provided that the product as
packaged meets the Smart Snacks
standards for calories, sodium, saturated
fat, and total sugars by weight.
This change applies to bean dip as a
standalone product; it does not apply to
combination foods that include bean
dip. For example, the exemption does
not apply to hummus packaged with
pretzels, pita, or other snack-type foods.
Applying this exemption only to bean
dip as a standalone product ensures that
the other foods that are offered for sale
to children at school alongside the bean
dip remain subject to the Smart Snacks
total fat standard, as well as all other
Smart Snacks standards. Under this
change, schools have the option to sell
bean dip as a standalone product, or
along with other standalone products
that also meet the Smart Snacks
standards, such as carrots or celery. As
detailed at 7 CFR 210.11(d)(2), fresh
vegetables, such as carrots and celery,
with no added ingredients are exempt
from Smart Snacks standards. Schools
may also sell bean dip along with whole
grain-rich pita bread, whole grain-rich
crackers, or other products, provided
those products meet the Smart Snacks
standards.
As a reminder, when a product that is
exempt from the Smart Snacks
standards is paired with another
product that is exempt, both exemptions
are maintained when the products are
paired and no other ingredients are
added. For example, the celery, peanut
butter, and raisins included in ‘‘ants on
a log’’ sold a la carte would maintain
their respective exemptions when
paired together with no other
ingredients. Additionally, combination
foods with at least 1⁄4 cup of fruit and/
or vegetable (for example, 1⁄4 cup of
grapes with enriched pretzels) can be
sold to students on campus throughout
the day, provided the combination food,
as packaged, meets all Smart Snacks
standards for calories, sodium, total fat,
saturated fat, and total sugars (by weight
of product).
USDA appreciates public input on
other foods and products that
stakeholders would like to exempt from
the Smart Snacks total fat standard.
However, this new exemption is limited
to bean dips, as defined at 7 CFR
210.11(a)(7). As noted, certain other
products already have an exemption to
the total fat standard, or the total fat and
saturated fat standards, for Smart
Snacks. These exemptions remain in
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place under this rule and are listed at 7
CFR 210.11(f).
Accordingly, this final rule amends 7
CFR 210.11(a)(7) to codify the definition
of ‘‘bean dip’’ and 7 CFR 210.11(f)(2)(ii)
to exempt bean dip, including hummus,
from the total fat standard in the Smart
Snacks regulations. This change
provides schools the option to sell bean
dip as a Smart Snack. Schools are not
required to change operations as result
of this provision.
Section 14: Meal Modifications
Current Requirement
Current regulations require schools,
institutions, and facilities to make meal
modifications to ensure participants
with disabilities have an equal
opportunity to participate in, and
benefit from, the NSLP, SBP, and
CACFP (7 CFR 210.10(m)(1), 220.8(m),
and 226.20(g)(1)). The regulations allow,
but do not require, schools, institutions,
and facilities to make substitutions for
‘‘medical or other special dietary needs’’
that are not disabilities but that prevent
a participant from consuming the
regular reimbursable meal or snack.
Under current NSLP and SBP
regulations, substitutions for disability
reasons must be supported by a written
statement signed by a licensed
physician. Under current CACFP
regulations, the written statement must
be signed by a licensed physician or
licensed healthcare professional who is
authorized by State law to write medical
prescriptions. Under the current NSLP,
SBP, and CACFP regulations,
substitutions for ‘‘medical or other
special dietary needs’’ must be
supported by a written statement signed
by a recognized medical authority (7
CFR 210.10(m)(2), 220.8(m), and
226.20(g)(2)). An exception is fluid milk
substitutes for ‘‘medical or special
dietary needs’’ that are not disabilities.
Fluid milk substitutes for ‘‘medical or
special dietary needs’’ must be
supported by a written request;
however, the written request may come
from a parent or guardian or from a
medical authority (7 CFR
210.10(m)(2)(ii)(B) and 226.20(g)(3)).122
Fluid milk substitutes are discussed in
greater detail in Section 3B: Fluid Milk
Substitutes: Responses to Request for
122 As noted in the proposed rule, based on
statutory requirements, USDA regulations include
several other requirements for fluid milk
substitutions for non-disability reasons, such as
specific nutrition standards. See page 8061: Child
Nutrition Programs: Revisions to Meal Patterns
Consistent With the 2020 Dietary Guidelines for
Americans (88 FR 8050, February 7, 2023).
Available at: https://www.federalregister.gov/d/
2023-02102/p-208.
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Input and Section 3C: Fluid Milk
Substitutes: Nutrient Requirements.
Current NSLP and SBP regulations
also encourage schools to consider
‘‘ethnic, religious, or economic’’ factors
when planning or preparing meals,
provided the variations meet the meal
pattern requirements (7 CFR
210.10(m)(3) and 220.8(m)). CACFP
regulations allow institutions and
facilities—with USDA approval—to
vary meal components on an
experimental or continuing basis, if the
variations are nutritionally sound and
necessary to meet ‘‘ethnic, religious,
economic, or physical’’ needs (7 CFR
226.20(h)).
In September 2016, USDA updated its
school meal modification policy
guidance 123 to reflect passage of The
Americans with Disabilities Act (ADA)
Amendments Act of 2008. Later, in June
2017, USDA issued updated CACFP and
SFSP meal modification policy
guidance.124 The ADA Amendments Act
clarified the meaning and interpretation
of the ADA definition of ‘‘disability’’ to
ensure that it would be broadly
construed and applied without
extensive analysis. Therefore, rather
than focusing on if a child or adult
participant has a disability, USDA’s
updated policy guidance stated that
program operators should focus on
working collaboratively with parents,
guardians, participating adults, or a
person acting on behalf of an adult
participant to ensure equal opportunity
to benefit from the programs. Notably,
USDA’s updated policy guidance 125
allowed a State licensed healthcare
professional, such as a nurse
practitioner or physician’s assistant, to
submit a medical statement on behalf of
a child or adult participant with a
disability. It also clarified that program
operators may accommodate requests
related to a disability that are not
supported by a medical statement if the
requested modification can be
accomplished within the program meal
patterns and encouraged operators to
use this option when possible. At the
123 U.S. Department of Agriculture, Modifications
to Accommodate Disabilities in the School Meal
Programs, September 27, 2016. Available at: https://
www.fns.usda.gov/cn/modifications-accommodatedisabilities-school-meal-programs.
124 U.S. Department of Agriculture, Policy
Memorandum on Modifications to Accommodate
Disabilities in the Child and Adult Care Food
Program and Summer Food Service Program, June
22, 2017. Available at: https://www.fns.usda.gov/
cn/modifications-accommodate-disabilities-cacfpand-sfsp.
125 See Question 16. U.S. Department of
Agriculture, Accommodating Disabilities in the
School Meal Programs: Guidance and Questions
and Answers (Q&As). April 25, 2017. Available at:
https://www.fns.usda.gov/cn/accommodatingdisabilities-school-meal-programs-guidance-qas.
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same time, the updated policy guidance
explained that program operators may
choose to obtain a written medical
statement for all disability meal
modifications, even those that fall
within the meal patterns. This updated
guidance addressed modifications
required to accommodate disabilities
that restrict a participant’s diet; it did
not address dietary preferences or other
non-disability requests, which program
operators are encouraged—but not
required—to meet.
Proposed Rule
In the 2020 rule, USDA proposed a
variety of regulatory changes to reflect
the updated policy guidance and to
improve access to modified meals for
participants who need them. The rule
proposed to codify in regulation that
State licensed healthcare professionals
may write medical statements to request
modifications on behalf of participants
with disabilities in the school meal
programs and CACFP. It also proposed
to define a State licensed healthcare
professional as an individual authorized
to write medical prescriptions under
State law. Regarding child and adult
participant food preferences, the 2020
rule proposed to revise existing
regulatory text to encourage schools,
institutions, and facilities to meet
participants’ cultural, ethical, Tribal, or
religious preferences when preparing
meals in the school meal programs and
CACFP.126 The rule also proposed
reorganizing the regulatory text to
distinguish between disability and nondisability requests more clearly. The
2020 rule did not propose changes to
SFSP regulations.
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Public Comments on 2020 Proposed
Rule
USDA received 120 comments on the
meal modifications provision of the
2020 proposed rule, including 83
unique comments. Of these, 69
supported the proposed changes,
including 32 unique comments, 6 were
opposed, and 45 were mixed.
Many respondents supported USDA’s
proposal to codify the existing policy
guidance in regulation and appreciated
the clarification that a medical
statement is only required for
modifications that fall outside the meal
patterns. Respondents also emphasized
the importance of ensuring participants
who need meal modifications can easily
126 For comparison, current regulations at 7 CFR
210.10(m)(3) state that, ‘‘Schools should consider
ethnic and religious preferences when planning and
preparing meals . . . Any variations must be
consistent with the food and nutrition requirements
specified under this section and needed to meet
ethnic, religious, or economic needs.’’
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access them and encouraged USDA to
take steps to minimize burden for
families in the modification request
process.
Respondents provided input on the
requirement for program operators to
obtain a medical statement when the
meal modification does not meet the
meal pattern requirements. One State
agency maintained that the meal
patterns provide enough flexibility to
meet a variety of needs and preferences.
In cases where a child or adult
participant requires a modification
outside the scope of the meal patterns,
this State agency agreed it should be
supported by formal documentation. A
few other State agencies asserted that
requiring a medical statement protects
children’s health and is not too
burdensome. Another State agency
agreed, adding that the medical
statement helps program staff ensure
that a child or adult participant’s health
needs are met. Similarly, an advocacy
organization noted that child nutrition
professionals work diligently to meet
non-disability dietary requests and
preferences, and when making a
disability-related meal modification,
they benefit from a complete written
medical statement. An individual
suggested that program operators obtain
a medical statement for all meal
modifications, regardless of whether
they fall within or outside of the meal
patterns.
USDA requested specific input on the
proposed definition of State licensed
healthcare professional, and whether
additional healthcare professionals
should be permitted to submit a medical
statement on behalf of a child or adult
participant with a disability. Most
respondents supported USDA’s
proposal to codify in regulation the
authority allowing State licensed
healthcare professionals to submit a
medical statement on behalf of a
participant with a disability. However,
respondents shared a variety of
perspectives on whether this authority
should be expanded further. For
example, one State agency did not
support expanding the scope of who can
submit a medical statement beyond
State licensed healthcare professionals,
noting that obtaining the medical
statement is an important step in
ensuring that all participant’s needs are
met with professionalism and sound
medical guidance. An advocacy group
agreed, stating that they do not support
expanding the definition to include
additional professionals; this
respondent maintained that ‘‘State
licensed healthcare professional’’ as
defined in the proposed rule is the
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appropriate level of authority to ensure
a child or adult participant’s health.
One State agency suggested that
allowing registered and licensed
dietitians to write medical statements to
support meal modifications seems very
reasonable given this is their field of
expertise. A second State agency agreed,
noting that dietitians may be more
accessible to families, reducing the
burden of obtaining the necessary
documentation for a meal modification,
while a third State agency argued that
dietitians may be better suited than the
currently approved professionals to
determine whether a child or adult
participant has a disability that affects
their ability to consume certain foods.
Another respondent noted that
dietitians tend to be available at the
district level working directly with
schoolchildren who could benefit from
disability-related meal modifications.
However, several respondents noted
that dietitians are not licensed in all
States.
One State agency recommended
accepting medical statements from
registered dietitians, speech
pathologists, licensed clinical social
workers, and psychologists. Another
State agency agreed, noting that
registered dietitians and speech
pathologists have extensive training and
are often consulted to develop
modification requests for children with
disabilities. Others, including school
districts and individuals who work in
schools, agreed, noting expanding the
scope of who can submit a medical
statement would facilitate access to
meal modifications for children who
need them. However, a few State
agencies expressed concern that adding
additional titles would confuse nondisability preferential requests with
medically necessary requests. Others
agreed, cautioning against expanding
this authority to professionals who are
not trained in science-based nutrition
therapy. One State agency noted that,
within their State, at least 10 types of
professionals already meet the
definition of ‘‘State licensed healthcare
professionals.’’ This State agency
maintained that program operators have
not struggled to obtain the required
documentation needed to provide meal
modifications for disability-related
needs.
Final Rule
This final rule codifies in regulation
that State licensed healthcare
professionals may write medical
statements to request modifications on
behalf of child or adult participants
with disabilities in the school meal
programs and CACFP. It also defines a
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State licensed healthcare professional as
an individual authorized to write
medical prescriptions under State law.
Based on public input, this final rule
also permits registered dietitians to
write medical statements to request
modifications on behalf of child and
adult participants with disabilities in
the school meal programs and in
CACFP. The requirement to accept
medical statements from registered
dietitians must be implemented by July
1, 2025, for NSLP and SBP, and by
October 1, 2025, for CACFP. Schools,
institutions, and facilities have the
option, but are not required, to
implement this change prior to the
implementation date. This final rule
also encourages schools, institutions,
and facilities to meet participants’ nondisability dietary preferences when
planning and preparing school and
CACFP meals.
This final rule updates and
reorganizes the regulatory text to
distinguish between disability and nondisability requests more clearly. Because
a dietary need that restricts a
participant’s diet could be considered a
disability, this final rule removes the
regulatory language regarding
participants ‘‘without disabilities who
cannot consume the regular lunch or
afterschool snack because of medical or
other special dietary needs.’’ 127 This
change reflects that participant requests
for modifications or variations would
fall into one of two categories: disability
or non-disability requests. Additionally,
in NSLP regulations, the final rule
moves the regulatory text related to
fluid milk substitutes for non-disability
reasons to the section of the regulation
that discusses fluid milk requirements
(7 CFR 210.10(d)). This change is
expected to help clarify the
requirements for fluid milk
substitutions for non-disability reasons.
The final rule also adjusts the regulatory
language regarding written requests for
fluid milk substitutes, replacing
‘‘medical authority’’ with ‘‘State
licensed healthcare professional or
registered dietitian.’’ This reflects the
approach used for fluid milk substitutes
in the proposed rule, which changed
‘‘medical authority’’ to ‘‘State licensed
healthcare professional,’’ except that
this final rule also includes registered
dietitians. This supports USDA’s efforts
to use consistent terminology across
program regulations. As with prior
regulations and the proposed rule, a
127 This language reflects regulatory language
formerly included in NSLP regulations at 7 CFR
210.10(m)(2). Similar language was also previously
included in CACFP regulations at 7 CFR
226.20(g)(2).
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child or adult participant’s parent or
guardian may also submit a written
request for a non-disability fluid milk
substitute in NSLP, SBP, or CACFP.
Lastly, this final rule updates the
regulatory definitions of Child in NSLP
and SBP regulations, Child with a
disability in NSLP regulations, and
Persons with disabilities in CACFP
regulations.
Along with State licensed healthcare
professionals, USDA is authorizing
registered dietitians to submit medical
statements for disability meal
modifications in response to public
comment, and due to the specific
education and training requirements
they receive. Registered dietitians are
not required to have a State license to
submit medical statements for meal
modifications under this rule. USDA
agrees that registered dietitians are wellpositioned to determine specific,
nutritionally sound meal modifications
to support participants with disabilities.
Registered dietitians are credentialed
professionals, and according to the
Commission on Dietetic Registration,
registered dietitians are food and
nutrition experts who have met the
Commission on Dietetic Registration’s
(CDR) criteria to earn the registered
dietitian credential.128 USDA
acknowledges that other skilled
professionals—such as speech
therapists, psychologists, and social
workers—have extensive knowledge in
their fields and serve critical roles in the
care of children and adults. While
USDA does not authorize acceptance of
medical statements for disability meal
modifications beyond State licensed
healthcare professionals and registered
dietitians, USDA expects that State
licensed healthcare professionals and
registered dietitians will continue to
coordinate with other key professionals,
depending on the specific needs of
participants with disabilities. With this
rule, USDA is balancing the importance
of improving participant access to meals
that meet their individual needs with
the importance of ensuring that schools,
institutions, and facilities have the
information they need to keep
participants with disabilities that
restrict their diet safe.
USDA recognizes that some
respondents are concerned about dietary
requests that are not medically
necessary. Schools, institutions, and
facilities are not obligated to meet
128 The Commission on Dietetic Registration is
the credentialing agency for the Academy of
Nutrition and Dietetics. See: Commission on
Dietetic Registration. Registered Dietitian (RD) or
Registered Dietitian Nutritionist (RDN)
Certification. Available at: https://www.cdrnet.org/
RDN.
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requests that are not related to a
participant’s disability. Additionally,
USDA reminds schools, institutions,
and facilities that their obligation is to
provide a meal modification to
accommodate a participant’s disability,
not to provide an exact product listed
on the medical statement. For example,
if a medical statement lists an
expensive, brand-name product as a
substitution for a participant with a
disability, the school, institution, or
facility should engage in an interactive
process with the participant’s parent or
guardian to see if it would be safe and
appropriate to provide a lower-cost,
generic brand item. In most instances, a
generic brand is sufficient, unless the
brand name item is medically necessary.
In general, if a school, institution, or
facility has concerns about a request,
they are responsible for working with
the parent or guardian to develop an
appropriate modification and, as
applicable, suitable alternatives.
This final rule also codifies changes
related to non-disability meal variations
in the school meal programs and
CACFP. The prior NSLP regulations
encouraged schools to consider
variations for ‘‘ethnic, religious, or
economic reasons.’’ In CACFP, the prior
regulations noted potential variations
for ‘‘ethnic, religious, economic, or
physical needs’’ at the institution or
facility level but did not encourage
variations to meet participant
preferences. This final rule changes the
school meal and CACFP regulations to
encourage program operators to meet
child and adult participant preferences
when planning and preparing meals. As
noted in the proposed rule, meeting
non-disability dietary preferences is
encouraged, but not required. Although
the proposed rule specifically listed
several categories of non-disability
dietary preferences, in the final rule,
USDA has instead opted to refer to
‘‘preferences’’ generally. This is not
intended to diminish the importance of
the dietary preferences listed in the
proposed rule, but rather, to allow the
regulation to be applied broadly to the
range of child and adult participant
dietary preferences. These preferences
include, but are not limited to, the nondisability dietary preferences included
in the proposed rule: cultural, ethical,
Tribal, and religious preferences. The
Dietary Guidelines emphasize the
importance of considering dietary
preferences and cultural traditions and
provide a framework to be customized
to reflect the foodways of the diverse
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cultures in the U.S.129 Similarly, the
NSLP, SBP, and CACFP allow schools,
institutions, and facilities to choose
specific foods to offer at each meal,
provided the meal meets the
overarching meal pattern requirements.
USDA acknowledges that, due to
operational and budgetary constraints,
program operators may not be able to
meet all participant preferences at each
meal service; however, USDA
encourages program operators to strive
for an inclusive meal service.
Consistent with the proposed rule,
these changes do not apply to SFSP.
USDA acknowledges that many
stakeholders would like to see SFSP
included with these changes. However,
USDA instead intends to address SFSP
meal pattern requirements separately
and comprehensively in future
rulemaking. The existing policy
guidance 130 for SFSP meal
modifications for disabilities remains in
effect.
Accordingly, this final rule amends 7
CFR 210.2, 210.10(d)(2) and (m),
215.7a(b), 220.8(m), 226.2, and 226.20(g)
to revise regulatory requirements for
meal modifications for disability and
non-disability reasons for the school
meal programs and CACFP. The change
requiring program operators to accept
medical statements from registered
dietitians must be implemented by July
1, 2025, for NSLP and SBP, and by
October 1, 2025, for CACFP.
Section 15: Clarification on Potable
Water Requirements
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Current Requirement
Current NSLP regulations at 7 CFR
210.10(a)(1)(i) require schools to make
potable water available and accessible
without restriction to children at no
charge in the places where lunches are
served during the meal service. When
breakfast is served in the cafeteria,
current SBP regulations at 7 CFR
220.8(a)(1) require schools to make
potable water available and accessible
without restriction to children at no
129 According to page ix of the Dietary Guidelines,
‘‘A healthy dietary pattern can benefit all
individuals regardless of age, race, or ethnicity, or
current health status. The Dietary Guidelines
provides a framework intended to be customized to
individual needs and preferences, as well as the
foodways of the diverse cultures in the United
States.’’ U.S. Department of Agriculture and U.S.
Department of Health and Human Services. Dietary
Guidelines for Americans, 2020–2025. 9th Edition.
December 2020. Available at:
DietaryGuidelines.gov.
130 U.S. Department of Agriculture, Policy
Memorandum on Modifications to Accommodate
Disabilities in the Child and Adult Care Food
Program and Summer Food Service Program, June
22, 2017. Available at:https://www.fns.usda.gov/cn/
modifications-accommodate-disabilities-cacfp-andsfsp.
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charge. USDA issued policy guidance to
support implementation of this
provision in July 2011. In that policy
guidance, USDA specified that schools
must serve plain water to meet the
potable water requirement.131
Proposed Rule
In the 2020 proposed rule, USDA
proposed to allow schools to offer
calorie-free, naturally flavored,
noncarbonated water to meet the
potable water requirement. Under the
proposed rule, schools would have the
option to continue to offer plain water
to meet the potable water requirement
but could also meet the requirement by
offering naturally flavored water.
Public Comments on 2020 Proposed
Rule
USDA received 85 comments on the
potable water provision of the 2020
proposed rule; all were unique
comments. Of these, 37 supported the
proposal, 29 were opposed, and 19 were
mixed.
Proponents, including State agencies,
school districts, and industry
respondents, argued that offering
naturally flavored water would increase
water appeal and consumption. For
example, one advocacy group suggested
that water infused with lemons, berries,
cucumbers, or mint would boost student
water consumption. A State agency
agreed that water with cucumber,
lemon, or herbs would be a low-cost
way to improve the palatability of water.
A few respondents supported
expanding potable water options, but
only to water flavored with fresh or
frozen fruits or vegetables. Other
respondents argued that this provision
should not permit water with food
additives or sweeteners. Some
respondents requested clarification on
the type of water schools could offer to
meet the potable water requirement
under this provision.
One opponent argued children’s
mealtime beverage options should be
limited to plain water, milk, and limited
amounts of 100 percent fruit or
vegetable juice. Another opponent
suggested consuming flavored water
would adapt children’s palates toward
sweeter beverages, moving them away
from the natural taste of water. Several
respondents were opposed to water
flavored with certain ingredients, such
as ‘‘artificial sweeteners’’ and other
additives. One advocacy group argued
that the goal of the potable water
provision is to ensure clean drinking
131 U.S. Department of Agriculture. Water
Availability During NSLP Meal Service. July 12,
2011. Available at: https://www.fns.usda.gov/cn/
water-availability-during-nslp-meal-service.
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water for children and maintained there
is no reason to revise the current
standard.
Some respondents offered alternatives
or suggestions for implementation. For
example, one State agency did not
oppose allowing water flavored with
fruits, vegetables, and herbs, but
emphasized this option should be in
addition to plain potable water. This
State agency was concerned about food
allergies and indicated that maintaining
plain potable water during mealtimes
would be important for children who
cannot consume water with fruits,
vegetables, or herbs. Regarding water
with fruits or vegetables added, a few
advocacy groups suggested clarifying
that fruits or vegetables used to flavor
water may not count toward the meal
pattern requirements. Several
respondents, including proponents and
opponents, noted the importance of
following food safety guidelines when
offering fruit- or vegetable-infused
water.
Respondents also highlighted the
importance of water consumption and
hydration. One advocacy group
emphasized the importance of ensuring
schools have safe drinking water.
Another respondent suggested investing
in basic plumbing, as well as installing
water bottle filling stations in schools. A
few advocacy organizations stated
support for policies and efforts that
expand safe water options for students.
Final Rule
This final rule will not adopt the 2020
proposal to allow schools to offer
calorie-free, naturally flavored,
noncarbonated water to meet the
potable water requirement. This
decision is supported by public
comments, which noted that some
children may have food allergies that
prevent them from consuming water
with fruits, vegetables, or herbs. It is
also responsive to public comments that
raised concerns about other ingredients,
such as sweeteners or additives. Under
this final rule, schools will continue to
be required to make plain potable water
available and accessible without
restriction to children at no charge
during the meal service. To clarify this
requirement, this final rule adds the
word ‘‘plain’’ to the regulations
requiring potable water to be offered
with school meals at 7 CFR
210.10(a)(1)(i) and 220.8(a)(1). As with
current regulations, this requirement
applies in places where lunches are
served during the meal service,
including lunches served outside of the
cafeteria. For breakfast, as with current
regulations, this requirement applies
when breakfast is served in the cafeteria.
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Maintaining the requirement to offer
plain potable water responds to public
comments that emphasized the
importance of prioritizing access to
plain water for children who prefer it,
or who cannot consume water with
fruits, vegetables, or herbs due to food
allergies. However, USDA wishes to
clarify that the requirement to offer
plain potable water does not limit
schools’ ability to also offer potable
water with fruits, vegetables, and herbs
added, in addition to the required plain
water. For example, a school may offer
fruit-infused water at lunch provided
children also have access to plain
potable water during the meal service.
State agencies and schools are reminded
that reasonable costs associated with
providing potable water are an
allowable cost to the nonprofit school
food service account. Additionally,
based on public comment, USDA
clarifies that fruits, vegetables, and
herbs added to plain potable water do
not count toward the meal pattern
requirements for fruits or vegetables.
Schools also are not required to count
the negligible calorie content of water
infused with fruits, vegetables, or herbs
toward the weekly calorie limits.
USDA also appreciates public
comments regarding the importance of
food safety when offering water with
fruits, vegetables, or herbs. Regulations
at 7 CFR 210.13(a) require school food
authorities to ensure that food storage,
preparation, and service is in
accordance with the sanitation and
health standards established under State
and local law and regulations. School
food authorities must also develop a
written food safety program that covers
any facility or part of a facility where
food is stored, prepared, or served (7
CFR 210.13(c)). Schools opting to offer
water with fruits, vegetables, or herbs
must continue to follow the food safety
requirements as detailed in 7 CFR
210.13(c), as well as applicable State
and local requirements.
Accordingly, this final rule amends 7
CFR 210.10(a)(1)(i), 210.18(h)(2)(v), and
220.8(a)(1) to add the word ‘‘plain’’ to
the potable water requirements. Schools
are not required to change menus or
operations as a result of this technical
change.
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Section 16: Synthetic Trans Fats
Current Requirement
Current regulations prohibit synthetic
trans fat in the school lunch and school
breakfast programs, and in foods sold to
children on campus during the school
day (7 CFR 210.10(f)(4), 220.8(f)(4), and
210.11(g)). This requirement was
included in Nutrition Standards in the
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National School Lunch and School
Breakfast Programs 132 and in National
School Lunch Program and School
Breakfast Program: Nutrition Standards
for All Foods Sold in School as Required
by the Healthy, Hunger-Free Kids Act of
2010.133 The synthetic trans fat
prohibition was phased in, beginning
with the NSLP, in SY 2012–2013.
In 2015, the FDA determined that
partially hydrogenated oils, the major
source of artificial (synthetic) trans fat
in the food supply, were no longer
‘‘Generally Recognized as Safe,’’ or
GRAS. Based on this determination, the
FDA took regulatory action to eliminate
partially hydrogenated oils (and,
therefore, synthetic trans fats) from the
United States food supply. While the
compliance date for certain uses was
extended, the compliance date for most
uses of partially hydrogenated oils was
June 18, 2018.134 As of January 2020,
food manufacturers were no longer
allowed to sell foods containing trans
fats. This FDA action effectively banned
trans fats from being added to foods
made or sold in the U.S., making
additional regulations prohibiting
synthetic trans fats in school meals
unnecessary.
Proposed Rule
In the 2020 proposed rule, USDA
proposed to remove the synthetic trans
fat prohibition for NSLP, SBP, and foods
sold to children on campus during the
school day. The proposed rule stated
that under this change, schools would
not have to comply with, and State
agencies would not have to monitor,
synthetic trans fat requirements. As
noted in the proposed rule, based on the
FDA’s action to remove synthetic trans
fat from the United States food supply,
USDA determined that school meal
regulations prohibiting synthetic trans
fat were no longer necessary. Because
FDA took action to remove synthetic
trans fats from the food supply, USDA
132 U.S. Department of Agriculture. Nutrition
Standards in the National School Lunch and School
Breakfast Programs. (77 FR 4088, January 26, 2012).
Available at: https://www.federalregister.gov/
documents/2012/01/26/2012-1010/nutritionstandards-in-the-national-school-lunch-and-schoolbreakfast-programs.
133 U.S. Department of Agriculture. National
School Lunch Program and School Breakfast
Program: Nutrition Standards for All Foods Sold in
School as Required by the Healthy, Hunger-Free
Kids Act of 2010. (81 FR 50132, July 29, 2016).
Available at: https://www.federalregister.gov/
documents/2016/07/29/2016-17227/nationalschool-lunch-program-and-school-breakfastprogram-nutrition-standards-for-all-foods-sold-in.
134 U.S. Food and Drug Administration. Final
Determination Regarding Partially Hydrogenated
Oils (Removing Trans Fat). Available at: https://
www.fda.gov/food/food-additives-petitions/finaldetermination-regarding-partially-hydrogenatedoils-removing-trans-fat.
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concluded that maintaining additional
regulations to prohibit synthetic trans
fats in school meals was unnecessary.
Public Comments on 2020 Proposed
Rule
USDA received 29 comments on the
synthetic trans fat provision of the 2020
proposed rule; all were unique
comments. Of these, 14 supported the
proposal, 14 were opposed, and 1 was
mixed.
Proponents, including industry
respondents and advocacy groups,
supported removing the synthetic trans
fat prohibition due to the FDA’s actions
to remove synthetic trans fat from the
food supply. One industry respondent
supported the change but questioned
how trans fat that occurs naturally in
foods would be monitored. However,
another industry respondent noted that
naturally occurring trans fat, which is
present in some meat and dairy
products, occurs at very low levels. A
few State agencies supported the
proposal. One State agency noted that
synthetic trans fat would not be a
concern in school meals after its
elimination from the U.S. food supply.
Another State agency agreed but noted
that the FDA’s compliance date could be
extended; this State agency
recommended that USDA delay
implementation of its regulation until
synthetic trans fat is fully eliminated
from the food supply.
A few opponents cited general health
concerns related to synthetic trans fat
consumption, without acknowledging
the elimination of synthetic trans fat
from the food supply. Several other
opponents, including State agencies and
Attorneys General from several States,
cited concerns about the FDA’s
compliance date for the elimination of
synthetic trans fat. One State agency
provided mixed feedback,
recommending that USDA align its final
standard with the FDA’s compliance
date. Another State agency opponent
cited concerns about synthetic trans fat
in non-domestic foods.
Final Rule
This final rule removes the dietary
specification prohibiting synthetic trans
fat in the school lunch and breakfast
programs and in foods sold to children
on campus during the school day.
Under this change, schools will no
longer need to include the synthetic
trans fat prohibition in their
procurement documentation, and State
agencies will no longer need to review
product labels or manufacturer
specifications for compliance with the
synthetic trans fat dietary specification.
This change reduces burden by
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eliminating a requirement that USDA
determined is no longer necessary due
to the FDA’s actions to eliminate
synthetic trans fat from the U.S. food
supply.
USDA acknowledges respondent
concerns about the compliance date for
the FDA’s order eliminating synthetic
trans fat from the U.S. food supply.
While implementation of the FDA’s
order began in June 2018, at the time the
2020 proposed rule published, the
compliance date for certain uses of
partially hydrogenated oils had been
extended. The final compliance date of
January 2021, which extended the
compliance date for specific, limited
petitioned uses of partially
hydrogenated oils, has now been in
effect for several years.135
USDA appreciates concerns one
respondent raised regarding synthetic
trans fat in non-domestic foods. The
elimination of synthetic trans fat applies
to all foods sold in the U.S food supply,
including non-domestic foods.
Additionally, school food authorities are
required by law to purchase domestic
commodities or products to the
maximum extent practicable. This
rulemaking strengthens the existing Buy
American requirements and establishes
a new threshold limit for non-domestic
food purchases (see Section 18: Buy
American). Further, USDA data from SY
2017–2018 found that fruits and
vegetables are by far the most common
non-domestic food purchases for school
food authorities.136 Therefore, USDA
does not expect the limited use of nondomestic foods in the NSLP and SBP to
result in an increase in synthetic trans
fats in school meals.
Finally, USDA acknowledges public
comments about naturally occurring
trans fat. The FDA notes that trans fat
occurs naturally in small amounts in
some meat and dairy products and is
135 See: ‘‘Implementation.’’ U.S. Food and Drug
Administration. Final Determination Regarding
Partially Hydrogenated Oils (Removing Trans Fat).
Available at: https://www.fda.gov/food/foodadditives-petitions/final-determination-regardingpartially-hydrogenated-oils-removing-trans-fat.
136 Of the 26 percent of school food authorities
that reported using exceptions to the Buy American
provision in SY 2017–2018, 93 percent reported
using them to purchase fruit, while 53 percent
reported using them to purchase vegetables. By
comparison, 18 percent reported using them to
purchase ‘‘other’’ foods, such as yeast, oils, and
spices, and less than 10 percent each reported using
them to purchase grains or meat/meat alternates.
See Exhibit 4: Among SFAs that Reported Using an
Exception to the Buy American Provision, Reasons
for Using an Exception and Products Purchased.
U.S Department of Agriculture, Food and Nutrition
Service, Office of Policy Support, Child Nutrition
Program Operations Study (CN–OPS–II): SY 2017–
18. Beyler, Nick, Jim Murdoch, and Charlotte Cabili.
Project Officer: Holly Figueroa. Alexandria, VA:
November 2022.
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present at very low levels in other
edible oils.137 In the 2012 rule, USDA
clarified that the trans fat prohibition
for school meals would not apply to
naturally occurring trans fat present in
some meat and dairy products. Rather,
it would apply to synthetic trans fat,
which the 2012 rule preamble noted
‘‘are found in partially hydrogenated
oils used in some margarines, snack
foods, and prepared desserts.’’ 138 This
final rule does not impact naturally
occurring trans fat, which continue to
be permitted in school meals.
Accordingly, this final rule amends 7
CFR 210.10(a)(3), (b)(1), (c), (f), (g), (h),
and (j), 210.11(f) and (g)(2),
210.18(l)(2)(iii), and 220.8(a)(3), (b)(1),
(c), (f) through (h), and (j). This change
reduces burden on State agencies and
schools. Schools are not required to
change menus or operations as a result
of this change.
Section 17: Professional Standards:
Hiring Exception for Medium and Large
Local Educational Agencies
Current Requirement
Current regulations at 7 CFR
210.30(b)(1) describe the hiring
standards for school nutrition program
directors; the standards vary for
directors operating in small, medium,
and large local educational agencies.
Specifically, the hiring requirements for
school nutrition program directors in
medium (2,500 to 9,999 students) and
large (10,000 or more students) local
educational agencies are as follows:
• According to 7 CFR 210.30(b)(1)(ii),
school nutrition program directors with
local educational agency enrollment of
2,500 to 9,999 students (i.e., a medium
local educational agency) must have:
• A bachelor’s degree, or equivalent
educational experience, with an
academic major or concentration in food
and nutrition, food service management,
dietetics, family and consumer sciences,
nutrition education, culinary arts,
business, or a related field;
• A bachelor’s degree, or equivalent
educational experience, with any
academic major or area of concentration,
and a State-recognized certificate for
school nutrition directors;
• A bachelor’s degree in any
academic major and at least two years
137 U.S. Food and Drug Administration. Final
Determination Regarding Partially Hydrogenated
Oils (Removing Trans Fat). Available at: https://
www.fda.gov/food/food-additives-petitions/finaldetermination-regarding-partially-hydrogenatedoils-removing-trans-fat.
138 U.S. Department of Agriculture. Nutrition
Standards in the National School Lunch and School
Breakfast Programs. (77 FR 4088, January 26, 2012).
Available at: https://www.federalregister.gov/d/
2012-1010/p-161.
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of relevant experience in school
nutrition programs; or
• An associate’s degree, or equivalent
educational experience, with an
academic major or area of concentration
in food and nutrition, food service
management, dietetics, family and
consumer sciences, nutrition education,
culinary arts, business, or a related field
and at least two years of relevant school
nutrition program experience.
• According to 7 CFR
210.30(b)(1)(iii), school nutrition
program directors with local
educational agency enrollment of 10,000
or more students (i.e., a large local
educational agency) must have:
• A bachelor’s degree, or equivalent
educational experience, with an
academic major or area of concentration
in food and nutrition, food service
management, dietetics, family and
consumer sciences, nutrition education,
culinary arts, business, or a related field;
• A bachelor’s degree, or equivalent
educational experience, with any
academic major or area of concentration,
and a State-recognized certificate for
school nutrition directors; or
• A bachelor’s degree in any major
and at least five years of experience in
management of school nutrition
programs.
Proposed Rule
USDA proposed to allow State agency
discretion to approve the hiring of an
individual to serve as a school nutrition
program director in a medium or large
local educational agency, for
individuals who have 10 or more years
of school nutrition program experience
but who do not hold a bachelor’s or an
associate’s degree. Additionally, USDA
proposed to clarify in regulation that
State agencies may determine what
counts as ‘‘equivalent educational
experience’’ for the hiring standards.
The proposed rule suggested that this
change would allow highly experienced
individuals to advance their careers in
school food service. Additionally, the
proposal could help to ease hiring
challenges that USDA understands some
medium and large local educational
agencies experience.
Public Comments
USDA received 297 comments on the
proposed changes for professional
standards including 169 unique
comments. Of these, 173 supported the
proposal, including 106 unique
comments, 23 were opposed, all of
which were unique comments, and 101
were mixed, including 40 unique
comments. State agencies, school
nutrition professionals, advocacy
groups, industry respondents, school
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districts, dietitians, and individuals
submitted comments.
One school district proponent
described the proposal as a ‘‘solid
move’’ that would benefit capable
professionals with relevant work
experience; this proponent affirmed
such individuals are an asset to school
nutrition programs. Another school
district agreed, stating that the
leadership and achievements of
experienced candidates should be
valued. Several respondents suggested
that this proposal would allow
knowledgeable professionals to use their
skills to benefit schools and students,
with some citing their personal
experiences in the field of school
nutrition. An individual maintained this
change would be especially useful in
rural communities with small applicant
pools and limited ability to hire
directors that meet the current
education requirements. A school
district agreed, stating that any change
to expand the pool of candidates would
be welcome.
An individual proponent affirmed
that the proposal would expand
opportunity for school districts to hire
qualified candidates from within their
district. Similarly, an industry
respondent suggested the proposal
would allow candidates in assistant
director positions to advance in their
careers. A State agency agreed, asserting
that this change would allow school
districts to promote experienced
employees who may be the best
candidate for the job. A school district
suggested the proposal would allow a
path for growth in the field of child
nutrition while still requiring the
experience needed to do the job.
An advocacy group cited a
Congressional Research Service report
which indicated that 94 percent of
foodservice employees in U.S.
elementary and secondary schools are
women. This respondent suggested that
the degree requirement creates an
inequity to advancement in school
nutrition, citing the cost of obtaining a
degree as an example of a barrier. While
this respondent supported the proposal,
they also urged USDA to promote
greater economic opportunity for the
school nutrition workforce, including
support for professional development.
Similarly, a State agency acknowledged
that the ability to obtain a degree is
‘‘often a benefit of class and economic
privilege’’ and supported valuing
experience equally. One respondent,
citing their personal experience,
described working toward an advanced
degree as ‘‘time consuming and
extremely expensive.’’ This respondent
also raised concerns about student loan
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debt, particularly for individuals who
have already been working in child
nutrition for decades. A school district
agreed, stating that experience should
matter just as much as a degree,
particularly given barriers many people
face in obtaining a degree.
A national organization representing
tens of thousands of school nutrition
professionals noted that the professional
standards requirements ensure that
school nutrition directors have the
education and skills necessary to excel
in their roles and to work alongside
principals, superintendents, and other
highly credentialed individuals. At the
same time, this organization supported
allowing a minimum of 10 years of
school nutrition program experience to
substitute for a degree due to hiring and
recruitment issues that some schools are
experiencing. Similarly, another
respondent cited concerns about staffing
and workload challenges, and suggested
the proposal would benefit schools. An
advocacy group emphasized that this
proposal could help to address hiring
issues by expanding access to
promotion opportunities within school
nutrition. A State agency agreed,
suggesting this proposal would reward
dedicated school nutrition staff and
encourage career growth.
Other respondents opposed the
proposal. One school district argued
that a college degree is necessary for the
director position in medium and large
districts. This respondent noted that
this position requires knowledge of food
safety, personnel management, and how
to ‘‘run a business.’’ A few other school
districts agreed, arguing higher
education is necessary to succeed as a
director in medium and large districts.
A dietitian maintained that years of
experience should not substitute for a
degree; along with formal education,
this respondent emphasized the
importance of ongoing learning.
Another opponent argued that the
requirements placed on school nutrition
professionals have not lessened;
therefore, USDA should not provide
flexibility to the hiring standards. A
school district opponent described their
education credentials, maintaining that
their advanced degree provided them
with skills to balance budgets and
develop menus for students with special
diets. This respondent urged USDA to
uphold the current standards. Another
school district argued that the current
degree requirement gives school
nutrition directors credibility when
interacting with school administrators,
staff, and families.
In addition to general feedback on the
proposed changes, USDA requested
public input on the following questions:
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• Is it reasonable to allow medium
and large local educational agencies to
substitute 10 years of school nutrition
program experience for a bachelor’s or
an associate’s degree when hiring a
school nutrition program director?
• Should USDA also consider
allowing medium and large local
educational agencies to substitute other
types of experience, such as experience
in other food service sectors?
• How often do State agencies and
school districts anticipate using the
hiring exception?
• What strategies do local educational
agencies currently use to recruit
qualified school nutrition program
directors?
A handful of respondents provided
feedback in response to the first
question, which was about the number
of years of experience that USDA should
allow to substitute for a degree when
hiring a director in a medium or large
local educational agency. A dietitian
argued that 10 years of real-world
experience would provide an individual
the knowledge needed to succeed as a
director. An advocacy group asserted
that a school nutrition professional with
10 years of experience would have
participated in many hours of training,
in addition to their regular job duties,
making them ‘‘very capable of doing an
excellent job as a director.’’ An industry
respondent agreed that 10 or more years
of child nutrition program experience
‘‘is a suitable alternative to traditional
education.’’ One respondent suggested
10 years of experience is appropriate for
large school districts and suggested 5 to
7 years could be appropriate for
medium school districts, provided the
candidate had experience with
procurement, menu planning, and
personnel management. A few school
districts suggested that USDA consider
lowering the number of years from 10 to
5 years for medium and large school
districts. A State agency agreed,
maintaining that allowing 5 years of
school nutrition program experience to
substitute for a degree would further
ease hiring challenges faced by some
school districts. Another State agency
suggested that it would be reasonable to
require 4 years of child nutrition
program experience, rather than 10
years, given it typically takes about 4
years to complete a bachelor’s degree. A
school district respondent did not
provide a specific number of years of
experience needed, but emphasized the
value of institutional knowledge, which
they conveyed is the result of ‘‘many
years spent doing the work.’’
Respondents also addressed whether
USDA should allow other types of
experience, such as experience in other
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food service sectors, to substitute for a
degree. One school district encouraged
USDA to allow other food service
experience, including military food
service, to count when assessing a
candidate’s potential. A State agency
agreed, provided the work experience
includes duties similar in size and
scope to the role of a school nutrition
program director. This State agency
noted that other food service sectors
may provide similar experience in
procurement, menu planning, ordering,
receiving, invoicing, and inventory
control. Conversely, given the specific
requirements of school meal programs,
a national organization representing
tens of thousands of school nutrition
professionals maintained that only
school nutrition program experience
should be allowed to substitute for a
degree. This organization further
suggested that this experience should
include managing or supervising
personnel and overseeing school meal
programs at the district level for
multiple sites. A school district
proponent also emphasized the
importance of child nutrition program
experience, as opposed to commercial
food service experience. A State agency
agreed, noting that other sectors are not
as regulated as USDA food service
programs, which may make the
transition from another area of food
service to school nutrition difficult for
a new director.
A few respondents provided input on
the third question regarding how often
the proposed hiring exception would be
used. One State agency noted that they
receive at least two requests for hiring
exceptions for medium and large school
districts per year; this respondent
supported the proposal. A second State
agency proponent expected to receive
about four requests for an exception per
year, with the potential for more, should
the proposal be finalized. A third State
agency did not directly address the
question, but shared one real-world
example where this exception could
have been used to hire a highly
qualified candidate with 20 years of
experience in their State. This State
agency supported the proposal,
describing it as ‘‘reasonable.’’ On the
other hand, one State agency did not
anticipate the flexibility would be used
often, suggesting that medium and large
school districts would opt to require a
bachelor’s or an associate’s degree for
director positions.
A few respondents shared strategies
that school districts use to recruit
qualified school nutrition program
directors. One State agency noted that
school districts recruit qualified
candidates through advertisements on
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websites, search engines, and social
media, and by holding job fairs. Another
State agency suggested that partnerships
with career tech centers and college
programs have helped some school
districts, while acknowledging that
recruiting directors can be a challenge.
One respondent stated that school
districts post position openings through
‘‘normal recruitment channels.’’
Some respondents offered alternatives
to the proposal, or suggested changes.
For example, a few respondents
recommended that USDA outline
specific types of experience candidates
must have to qualify for the hiring
exception, in addition to their years of
experience. A school district
emphasized the importance of
understanding finances, which they
argued is crucial for making strategic
decisions. An advocacy group suggested
that USDA require experience in a
supervisory role and in counting,
claiming, menu development, and other
areas of program administration. This
respondent also suggested requiring a
certain number of technical school or
college credits to qualify for this
exception. A dietitian recommended
requiring management skills and
emphasized the importance of ensuring
directors can interpret regulations, plan
menus, oversee a budget, and coach
staff. Another respondent suggested that
USDA specify whether the years of
experience would need to be
consecutive for a candidate to qualify
for the exception.
Other respondents suggested that
USDA narrow the scope of the proposed
change or add other requirements to the
process. One respondent recommended
that medium and large school districts
should only be allowed to use this
exception if they implement a plan for
the candidate to earn a degree. A State
agency recommended limiting this
exception to instances when there is
documentation that no candidates who
applied for the position met the
education criteria. An advocacy group
recommended the exception only be
allowed in rural areas, arguing that
urban school districts can find
candidates that meet the existing
standards. However, another advocacy
group acknowledged differences in local
needs based on school district size and
urbanicity, and suggested State agencies
should have discretion to approve the
hiring of a director based on specific
local context. Going further, an
individual recommended that it should
be the school district’s decision whether
to use the hiring exception, presumably
as opposed to requiring State agency
approval. Another respondent suggested
eliminating the education requirements
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entirely, arguing if someone can do the
job based on their skills, they should be
eligible. A form letter campaign
supported the proposal but suggested
that USDA seek guidance from school
nutrition professionals to make sure the
change is implemented in a way that is
‘‘as helpful as possible.’’
A few respondents provided feedback
on school nutrition hiring and training
requirements in general. One advocacy
group acknowledged the importance of
the professional standards requirements,
noting that they ensure school nutrition
program personnel have the knowledge
and skills they need to operate the
programs successfully. This respondent
suggested that the professional
standards have supported
improvements in meal quality in their
State and nationwide. A few
respondents noted the value of
mentoring for a successful career in
school nutrition. Another emphasized
the important role of their State agency,
adding that they feel well supported by
their State agency in their continued
learning.
Final Rule
This final rule codifies the proposal to
allow State agency discretion to approve
the hiring of an individual to serve as
a school nutrition program director in a
medium or large local educational
agency, for individuals who have 10 or
more years of school nutrition program
experience but who do not hold a
bachelor’s or an associate’s degree.
Directors hired under this exception
must have a high school diploma or
GED. USDA expects that this change
will allow highly experienced and
qualified individuals to advance their
careers in school nutrition. This change
is also expected to ease hiring
challenges which USDA understands
are experienced by some medium and
large local educational agencies.
USDA appreciates public input on the
number of years of experience, and the
type of experience, that should qualify
a candidate for this exception. Several
respondents acknowledged the
importance of experience in school
nutrition, including experience
developing menus that meet the
regulatory meal pattern requirements,
counting and claiming meals, and
maintaining compliance with other
program rules. USDA agrees with public
comments that suggested a candidate
should have school nutrition experience
to qualify for this exception. Further,
USDA agrees with public comments
stating that 10 years is an appropriate
amount of time to substitute for a
degree. The candidate’s experience does
not need to be in consecutive years; a
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candidate only needs to accrue a total of
10 years of experience in school
nutrition to qualify for this exception.
This final rule also codifies in
regulation that State agencies may
determine what counts as ‘‘equivalent
educational experience’’ for the hiring
standards. USDA provided the
following examples in the proposed
rule, which were supported by a
national organization representing tens
of thousands of school nutrition
professionals:
• If a candidate for a director position
in a medium local educational agency
does not have an associate’s degree, but
has more than 60 college credits in a
relevant field, the State agency would
have the discretion to approve the
hiring of that candidate.
• If a candidate for a director position
in a large local educational agency does
not have a bachelor’s degree, but has an
associate’s degree, is a School Nutrition
Specialist certified by the School
Nutrition Association, and is a Nutrition
and Dietetics Technician, Registered
(NDTR) 139 certified by the Academy of
Nutrition and Dietetics, then the State
agency has the discretion to approve the
hiring of that candidate.
These are just two possible scenarios
where a State agency may choose to
count a candidate’s experience toward
the hiring requirements as ‘‘equivalent
educational experience.’’ State agencies
have discretion to determine that other
types of experience should count
toward ‘‘equivalent educational
experience’’ on case-by-case basis.
As described in 7 CFR 210.15(b)(7),
school food authorities must maintain
records to demonstrate compliance with
the professional standards for school
nutrition program directors, managers,
and personnel, including the hiring
requirements. This final rule does not
change the overall recordkeeping
requirements for professional standards.
However, to demonstrate compliance
when using this exception, the school
food authority and State agency would
need to maintain documentation of the
exception. For example, the school food
authority and State agency could
maintain documentation of the school
food authority’s request for the
exception, and documentation of the
State agency’s approval. Similarly, this
final rule does not change the
139 Nutrition and dietetics technicians, registered
(NDTRs) are educated and trained at the technical
level of nutrition and dietetics practice for the
delivery of safe, culturally competent, quality food
and nutrition services. See: Academy of Nutrition
and Dietetics, What is a Nutrition and Dietetics
Technician Registered? Available at: https://
www.eatrightpro.org/about-us/what-is-an-rdn-anddtr/what-is-a-nutrition-and-dietetics-technicianregistered.
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Administrative Review requirements for
professional standards. Professional
standards will continue to be evaluated
as part of the General Areas of Review,
as described at 7 CFR 210.18(h)(2)(ix).
USDA appreciates respondent
feedback about the importance of
ensuring school nutrition program
directors in medium and large districts
have the skills needed to succeed in
their jobs. Respondents emphasized that
obtaining a bachelor’s or an associate’s
degree is an effective way for candidates
to demonstrate they have the knowledge
and skills needed to succeed as a
director, which respondents stressed
can be a challenging position. Directors
hired under this provision are
encouraged, but not required, to work
toward a degree in food and nutrition,
food service management, dietetics,
family and consumer sciences, nutrition
education, culinary arts, business, or a
related field. While USDA
acknowledges the value in obtaining a
degree, USDA has determined that
hands-on experience in the school
nutrition programs is also an effective
way for candidates to demonstrate they
have the knowledge and skills needed to
succeed as a director in a medium or
large school district. USDA also
recognizes the importance of providing
an alternative option for school
nutrition professionals to advance in
their careers, even if they are unable to
obtain a degree due to financial or other
barriers. This exception is available at
the discretion of the State agency.
School districts and State agencies are
encouraged to work together to apply
this exception on case-by-case basis as
needed and as deemed appropriate.
In public comments, respondents
recommended that USDA require
candidates to meet specific criteria, in
addition to the candidate’s years of
experience, to qualify for this exception.
In this final rule, USDA will not require
candidates to meet specific criteria,
beyond the required years of experience.
However, school districts and State
agencies may choose to require
candidates to have specific types of
experience in order to qualify under this
exception. For example, a school district
could require candidates to have
experience managing a budget or
supervising staff to qualify for the
director position. As this exception is
available at the State agency’s
discretion, State agencies may also
apply additional criteria when using the
exception.
As proposed, this final rule removes
the existing table at 7 CFR 210.30(b)(2),
which provided a summary of the
school nutrition program director hiring
standards. USDA determined the
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amount of information within the table
was excessive, and instead of
maintaining the table in regulations,
will develop a more user-friendly table
summarizing the hiring standards to be
posted on the USDA Food and Nutrition
Service public website. The hiring
standards remain in regulation at 7 CFR
210.30(b)(1); therefore, this change—
which only removes the summary
table—is not substantive. In this final
rule, USDA also made corrections to
current paragraph leveling in 7 CFR
210.30 and reprinted the table
summarizing required annual training
with non-substantive changes to
improve usability.
USDA acknowledges and appreciates
public comments from school nutrition
directors and staff regarding the
importance of their job duties. School
nutrition professionals are incredibly
hardworking individuals who care
deeply about the children they serve.
Many school nutrition professionals,
some of whom have worked in school
nutrition for decades, submitted public
comments describing the great pride
they take in their work. USDA also
recognizes that school nutrition
professionals have faced many
challenges in their work over the past
several years, including serving as
essential, front-line workers during the
COVID–19 pandemic and more recently,
responding to supply chain disruptions
and high food costs. USDA remains
committed to supporting school
nutrition professionals throughout
implementation of this final rule and
beyond. Additionally, Team Nutrition’s
Professional Standards Resources
website 140 provides a variety of
resources which support school
nutrition professionals with
implementing and meeting the
professional standards requirements.
These include the Guide to Professional
Standards, the Professional Standards
Training Database, and the Professional
Standards Training Tracker Tool, among
others. More information regarding
USDA’s efforts to support schools and
school nutrition professionals may be
found in Section 1: Background of this
preamble.
Accordingly, this final rule amends 7
CFR 210.30(b)(1) to allow State agency
discretion to approve the hiring of an
individual to serve as a school nutrition
program director in a medium or large
local educational agency, for
individuals who have 10 years or more
of school nutrition program experience
but who do not hold a bachelor’s or an
140 U.S. Department of Agriculture. Professional
Standards. Available at: https://www.fns.usda.gov/
cn/professional-standards.
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associate’s degree. At the discretion of
the State agency, this change provides
local educational agencies an optional
hiring flexibility. Schools are not
required to change menus or operations
as a result of this provision.
Section 18: Buy American
This section includes the following
sub-sections:
• Section 18A describes limited
exceptions to the Buy American
requirement.
• Section 18B details Buy American
exception documentation and reporting
requirements.
• Section 18C explains procurement
procedures.
• Section 18D defines the term
‘‘substantially’’ as it relates to the Buy
American requirements.
• Section 18E clarifies requirements
for harvested farmed and wild caught
fish.
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Section 18A: Limited Exceptions to the
Buy American Requirement
Current Requirement
The Buy American provision
established under the National School
Lunch Act (NSLA, 42 U.S.C. 1760(n))
and program regulations at 7 CFR
210.21(d)(2) and 220.16(d)(2) requires
school food authorities to purchase
domestic commodities or products ‘‘to
the maximum extent practicable.’’ This
provision supports the mission of the
child nutrition programs, which is to
serve children nutritious meals and
support American agriculture. Through
policy guidance, USDA has detailed
limited exceptions to the Buy American
requirements.141 These limited
exceptions apply when the purchase of
domestic foods is not practicable and
include the following:
• The product is not produced or
manufactured in the U.S. in sufficient
and reasonably available quantities of a
satisfactory quality; or
• Competitive bids reveal the costs of
a U.S. product are significantly higher
than the non-domestic product.
Currently, no regulations establish a
definition of ‘‘significantly higher’’
when using an exception to the Buy
American provision. The school food
authority is responsible for determining
the dollar amount or percentage which
constitutes a significantly higher cost for
a domestic product, thus permitting the
use of an exception.
The Buy American provision is
applicable to school food authorities
141 U.S. Department of Agriculture. SP 38–2017
Compliance with and Enforcement of the Buy
American Provision in the NSLP. June 2017.
Available at: https://www.fns.usda.gov/nslp/
compliance-enforcement-buy-american.
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located in the 48 contiguous United
States. Although Alaska, Hawaii, and
the U.S. territories are exempt from the
Buy American provision, school food
authorities in Hawaii and Puerto Rico
are required to purchase food products
produced in their respective State or
territory in sufficient quantities, as
determined by the school food
authority, to meet school meal program
needs, per 7 CFR 210.21(d)(3) and 42
U.S.C. 1760(n)(4)).
Proposed Rule
USDA proposed to strengthen the Buy
American requirement by maintaining
the current limited exceptions and
establishing a new threshold limit for
school food authorities that use these
exceptions. USDA proposed to codify
the following exceptions, previously
issued through guidance, for when nondomestic foods may be purchased by
school food authorities:
• The product is not produced or
manufactured in the U.S. in sufficient
and reasonably available quantities of a
satisfactory quality; or
• Competitive bids reveal the costs of
a U.S. product are significantly higher
than the non-domestic product.
Additionally, USDA proposed to
institute a 5 percent ceiling on the nondomestic commercial foods a school
food authority may purchase per school
year, based on total commercial food
costs. Section 12 of the NSLA (42 U.S.C.
1760) mandates that the Secretary
require school food authorities to
‘‘purchase, to the maximum extent
practicable, domestic commodities or
products.’’ Under the statute, this
requirement applies to school food
authorities located in the contiguous
United States and a purchase of a
domestic commodity or product for the
school lunch or school breakfast
program. By proposing a cap on when
school food authorities may procure
non-domestic commercial foods, USDA
is balancing the statutory mandate to
Buy American and the intent of the Buy
American provision at Section 2 of the
NSLA (42 U.S.C. 1751) to ‘‘. . .
encourage the domestic consumption of
nutritious agricultural commodities and
other foods . . .’’ while also recognizing
that there are times when purchasing
domestic foods is not practicable for
schools. Finally, consistent with current
guidance, USDA proposed to clarify in
regulation that school food authorities
have discretion to determine whether an
exception applies.
Public Comments
USDA received 138 comments on the
proposed limited exceptions to the Buy
American requirement. Of these, 20
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supported the proposed standard, 72
were opposed, and 46 were mixed. Most
respondents supported codifying the
current exceptions for products not
available domestically, but some
requested that the significant cost
differential be defined or eliminated.
Most expressed concern that the 5
percent cap on non-domestic
commercial foods is too restrictive.
Importance of Supporting American
Agriculture
Several respondents, including, State
agencies, Federal elected officials,
advocacy groups, and individuals,
supported strengthening the Buy
American provision. One respondent
stated that the proposal supports local
farmers and the economy while also
protecting the environment by reducing
emissions from transporting food long
distances. Another respondent affirmed
that strengthening the Buy American
provision would increase sourcing from
local and regional producers. Other
respondents supported the proposal for
economic reasons. For example, a trade
association stated that the 5 percent cap
would disincentivize the use of U.S.
taxpayer dollars to purchase nondomestic food products. An advocacy
group stated that strengthening the
provision would maximize public
dollars spent on our nation’s food and
farm economy.
Implementation Challenges: Loss of
Variety for Students
Some respondents opposed the
proposal, including professional
organizations, school districts,
dietitians, and individuals. One
professional organization asserted that
the proposed 5 percent of total costs per
school year ceiling on non-domestic
commercial foods is too restrictive and
could limit students’ access to a wide
variety of fresh and appealing produce
throughout the school year. This
respondent mentioned that the
proposed changes may place a
significant administrative burden on
school meal programs and complicate
an already complex, challenging
procurement process. A State agency
agreed, adding that the proposed
changes may cause unnecessary stress
for menu planners. This State agency
expressed that the proposal would affect
States located in the north that have
shorter growing seasons.
Implementation Challenges: Supply
Chain Issues
Some respondents discussed the
current supply chain issues, stating that
the proposal would make the
procurement process more difficult and
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burdensome while decreasing variety
for students. One respondent asserted
that the droughts in California, damaged
grain crops in the Midwest, and
unseasonably cold weather in the south
have impacted the availability of
domestic food. A respondent mentioned
that the Buy American provision states
that schools should purchase domestic
products to the maximum extent
‘‘practicable,’’ but with the current
supply chain challenges, purchasing 95
percent of food domestically is not
‘‘practicable.’’ One respondent stated
that the 5 percent ceiling is not
reasonable while another questioned if
the 5 percent ceiling is possible to
maintain.
Implementation Challenges:
Administrative Burden
Some respondents raised concerns
about tracking non-domestic costs. A
State agency asserted that maintaining
documentation would be burdensome
for schools and State agencies,
especially for small school food
authorities with limited staff. Another
State agency agreed with the intent of
the proposal but argued that the
proposed limitation of 5 percent on nondomestic food purchases, is too
restrictive. This State agency said as
proposed, this provision will place
significant administrative burden on
school meal operators and State
agencies, adding to an already complex,
challenging Federal procurement
process.
Alternative Approaches Suggested by
Comments
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A few trade associations appreciated
USDA’s efforts to strengthen the Buy
American provision for school nutrition
programs and supported the proposed 5
percent of total costs cap for nondomestic food. However, these
respondents suggested that USDA apply
the 5 percent cap to categories and/or
product type,142 established by the
USDA’s Agricultural Marketing Service,
instead of total commercial food
purchases. Some of these trade
associations suggested that USDA
eliminate or define the ‘‘significant cost
differential’’ exception, stating that it is
a vague standard with inconsistent
application and that it creates a
loophole for distributors.
142 AMS used the following list as product types:
Beef, Cotton, Dairy Products, Eggs, Fish & Seafood,
Flowers & Plants, Fruits, Goat, Grain, Lamb, Nuts,
Pork, Organic, Poultry, Rabbits, Rice & Pulses,
Vegetables, Specialty Products, Tobacco, Wool &
Mohair. Also available at: https://
www.ams.usda.gov/grades-standards.
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In addition to general feedback on the
proposal, USDA requested input on the
following questions:
• Is the proposed 5 percent of total
costs per school year ceiling on the nondomestic commercial foods a school
food authority may purchase a
reasonable ceiling, or should a different
percentage be used? Would the 5
percent cap encourage those school food
authorities using exceptions to reduce
the amount of non-domestic products
they purchase? USDA requests that
respondents include justification and
reasons behind their response.
• How feasible would tracking and
documenting the total amount of nondomestic food purchases be? Would
purchasing and record keeping
processes need to be altered? Does the
documentation of total non-domestic
purchases alleviate burden associated
with documenting each limited
exception that is used? And any
additional information about how
school food authorities would document
the total amount of non-domestic food
purchases versus total annual food
purchases.
About 34 respondents provided input
on the first question, regarding the 5
percent of total costs per school year
ceiling on non-domestic purchasing.
Many respondents stated the proposed 5
percent cap is too restrictive and that
the data used to determine the proposed
cap is outdated. One respondent stated
that there have been supply chain
disruptions, inflation, increased
procurement challenges due to natural
disasters that impact school meal
programs, and a pandemic. Due to these
factors, this respondent did not feel the
proposed 5 percent cap accurately
represents the current procurement
landscape and does not apply lessons
learned from the pandemic. This
respondent also stated that the 5 percent
cap is significantly lower than current
procurement trends. In developing this
new requirement, FNS used the most
recent data available which was
collected in SY 2017–2018 and showed
school food authorities spent, on
average, 8.5 percent of food costs on
non-domestic products.
An individual asserted that the
proposed 5 percent cap would increase
burden for school nutrition
professionals. State agencies suggested
that the 5 percent cap would make
procurement more cumbersome and add
complexity to the oversight process.
State agency respondents also argued
that mandating a 5 percent cap on nondomestic food products would create
additional burden on schools.
Some respondents provided
alternatives to the 5 percent cap for non-
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domestic food purchases. For example,
one individual suggested a 10 percent
cap. A State agency recommended an
exemption list for items like bananas, in
addition to the 5 percent cap. Another
State agency urged USDA to require
school food authorities to develop a
system to track non-domestic food
products but noted that this would take
time. This State agency suggested that
USDA create an exception list of food
products that have been determined as
not produced in the U.S. in sufficient
and reasonable available commercial
quantities of satisfactory quality, such as
canned oranges, canned pineapple, and
fresh bananas.
Regarding the second question, 27
respondents provided input on the
feasibility of the proposed
recordkeeping process. Some
respondents affirmed that tracking nondomestic food purchases would be an
administrative burden. One individual
argued that the recordkeeping process
would contribute to administrative
burden because items would need
separate invoices for a successful audit
and tracking purposes. Another
respondent asserted maintaining
documentation would require vendors
and distributors to provide information
about non-domestic food products.
A State agency agreed, asserting that
school food authorities do not have
adequate time and resources for
additional paperwork.
Final Rule
This final rule changes the current
limited exceptions for the Buy
American provision and codifies the
two limited circumstances when school
food authorities may purchase nondomestic foods:
1. The product is listed on the Federal
Acquisitions Regulations (FAR) 25.104
Nonavailable articles list and/or is not
produced or manufactured in the U.S. in
sufficient and reasonably available
quantities of a satisfactory quality; or
2. Competitive bids reveal the costs of
a U.S. product are significantly higher
than the non-domestic product.
USDA notes that when a school food
authority purchases a food item found
on the FAR 25.104 Nonavailable articles
list, no further documentation is
required. The Nonavailable articles list
is a list of items that have been deemed
not available in the U.S. and excepted
from the Buy American statute.143 The
143 41 U.S.C chapter 83 is the Buy American
statute that requires public agencies to procure
articles, materials, and supplies that were mined,
produced, or manufactured in the United States,
substantially all from domestic components.
Available at: https://www.acquisition.gov/far/part25.
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list of items on the FAR 25.104 is non
exhaustive. Food products from the FAR
Nonavailable articles list must be
included in the calculation of the nondomestic cap.
This rulemaking does not define
‘‘significantly higher’’ for the definition
exception and instead USDA maintains
that the definition of ‘‘significantly
higher’’ is at the discretion of school
food authorities. Allowing school food
authority discretion acknowledges that
school food authorities of various sizes
have different resources, and reflects the
appropriate flexibility needed for
purchases given the diverse needs of
school food authorities.
USDA acknowledges that some
respondents requested such an
exemption list of non-domestic foods to
help reduce administrative burden
associated with documenting the two
exceptions to the Buy American
requirements. USDA expects that the
inclusion of the FAR 25.104
Nonavailable articles will reduce
administrative burden. This list is
readily available, reliable, and widely
used by the other Federal agencies.
Additionally, the inclusion of this list
will improve procurement practices,
support American agriculture, and
contribute toward increased Program
integrity.
In response to public comments that
suggested a 5 percent cap is too
restrictive under current procurement
conditions and that FNS data is not
representative of current procurement
practices, USDA will use a phased
approach to gradually reach the
proposed 5 percent of total costs per
school year cap on non-domestic food
purchases. USDA agrees with other
respondents who were in support of the
5 percent cap, because it will help
support American agriculture and
industry, and will use 5 percent as the
final cap on non-domestic food costs.
The cap on non-domestic food costs is
for total commercial food costs
purchased. Through a phased-in
implementation, USDA intends to help
schools, State agencies, and other
stakeholders adjust to the new
requirement and achieve compliance
with the Buy American provision. This
phased-in approach will allow schools
to gradually adjust to the new
requirement and will allow USDA to
continue to collect data on use of the
Buy American exceptions.
In the proposed rule, USDA asked
respondents if the proposed 5 percent
cap was too restrictive or if a different
cap should be used. Through public
comment a 10 percent cap was
suggested as an alternative to the 5
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percent cap. Using this suggestion, the
phased approach will be as follows:
• Beginning in SY 2025–2026, the
non-domestic food cost cap will be 10
percent.
• Beginning in SY 2028–2029, the
non-domestic food cost cap will be 8
percent.
• Beginning in SY 2031–2032, the
non-domestic food cost cap will be 5
percent.
School food authorities will be
required to maintain documentation
supporting the use of an exception,
except when the item is found on the
FAR 25.104 Nonavailable articles list.
USDA recognizes that the addition of
the cap may pose issues for some school
food authorities as it requires additional
burden to assess the amount of nondomestic purchases. However, USDA
notes that the Buy American
requirement is mandated by the statute
as discussed above. It is also an
important aspect of the school meal
programs to ‘‘. . . encourage the
domestic consumption of nutritious
agricultural commodities and other
foods . . .’’ (42 U.S.C. 1751). In
response to comments, USDA has
carefully considered how that
requirement can be appropriately
balanced with when the purchase of
domestic foods is not practicable for
schools as well as the associated
administrative burden. There still may
be individual school food authorities
that cannot meet the threshold. USDA
will work in concert with State agencies
during implementation to provide
needed technical assistance and
guidance, and if appropriate, an
accommodation for temporary relief
from the requirement as the State
agency works with the school food
authority on increasing their domestic
purchases.
Compliance with the non-domestic
cap will be reviewed by State agencies
in line with 7 CFR 210.18 during the
school meal programs Administrative
Review process. Regulations were
recently updated through the Child
Nutrition Program Integrity final rule 144
to specifically add the Buy American
requirements in 7 CFR 210.21(d) and
220.16(d) to the General Areas of
Review requirements. The process for
the General Areas during the review is
first technical assistance, followed by
corrective action if there are instances of
non-compliance. The review of the Buy
American requirement will follow this
process that is already familiar to State
agencies and schools and is meant to
simplify administrative burden in
response to comments. This process will
allow school food authorities and States
to work together to achieve compliance.
As indicated in the proposed rule, the
primary mechanism for collecting
information on the Buy American
provision is via the Child Nutrition
Operations (CN–OPS) study. USDA
notes that the CN–OPS study showed
that the vast majority of exceptions were
used for fruit and technical assistance
may center around helping school food
authorities to better monitor their
contracts and/or track their nondomestic expenses; an example of
corrective action is to modify future
menus to replace non-domestic items
with domestic items. There may be
circumstances outside of the school
food authority’s control that make
compliance with the Buy American
requirements challenging. These could
include nationwide supply chain issues
or another pandemic, and USDA will
provide guidance and direction with
respect to the Buy American
requirements.
In addition, in response to respondent
concerns about burden, USDA notes
that in accordance with a recent
Government Accountability Office
audit,145 USDA is committed to creating
a template for documenting Buy
American exceptions. USDA plans to
provide guidance and technical
assistance to support school food
authority implementation of the cap and
tracking of expenses.
Lastly in response to comments
suggesting that the non-domestic
expenditure cap be based on food
categories (e.g., fruit, etc.) already
established by the USDA’s Agriculture
Marketing Service instead of total
commercial food purchases, USDA has
concluded that this would only add
administrative burden for school food
authorities. Given the feedback received
in public comments, in this final rule
USDA is clarifying that the cap will
apply to total commercial food costs.
Accordingly, this final rule amends 7
CFR 210.21(d)(5) and 220.16(d)(5) to
codify the two limited circumstances
when school food authorities may
purchase non-domestic foods and to
gradually phase in a cap on when
school food authorities may procure
non-domestic food. Additionally, this
final rule amends 7 CFR 210.21(d)(8)
and 220.16(d)(8) to codify an
144 Child Nutrition Program Integrity (88 FR 162,
August 23, 2023). Available at https://
www.govinfo.gov/content/pkg/FR-2023-02-07/pdf/
2023-02102.pdf.
145 U.S Government Accountability Office. USDA
Could Enhance Implementation of the Buy
American Provision. April 2023. Available at:
https://www.gao.gov/assets/gao-23-105884.pdf.
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accommodation for schools unable to
meet the phased-in cap.
Section 18B: Exception Documentation
and Reporting Requirements
Current Requirement
Currently, the primary mechanism for
collecting information on the Buy
American provision is via the CN–OPS
study. The CN–OPS study is a multiyear study that provides USDA with
current information on various aspects
of school meals programs operations.
USDA uses results from this study to
help inform program management
practices and policy development.
School food authorities document
each use of an exception to the Buy
American requirements.146 However,
there is no requirement for school food
authorities to request a waiver from the
State agency or USDA in order to
purchase a non-domestic food product.
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Proposed Rule
USDA proposed to require school
food authorities to maintain
documentation supporting use of one of
the two limited exceptions and
documentation to demonstrate that no
more than 5 percent of total annual
commercial food costs per school year
are for non-domestic foods.
Public Comments
USDA received 24 comments on the
proposed Buy American exception
documentation and reporting
requirements. Of these, one supported
the proposal, 21 were opposed, and two
were mixed. State agencies, trade
agencies, vendors, school food
authorities, and individuals submitted
comments on the proposal.
The supportive comment came from a
trade agency. This respondent stated
that they agreed with the proposal and
that the proposal would make food
distributors more aware of the Buy
American requirements.
Many respondents stated that
requiring school food authorities to
maintain documentation showing no
more than 5 percent of their total annual
commercial food costs were spent on
non-domestic foods will add to
administrative burden and stated that
school food authorities are already
overwhelmed with documentation
requirements. Another respondent
asserted that the documentation
requirement would require timeconsuming activities such as reviewing
146 U.S. Department of Agriculture, Compliance
with and Enforcement of the Buy American
Provision in the National School Lunch Program,
June 30, 2017. Available at: https://
www.fns.usda.gov/nslp/compliance-enforcementbuy-american.
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all invoices to determine the total costs
and non-domestic costs and calculating
the percentage on a regular basis, on top
of all the other program requirements
that must be monitored.
Respondents stated that they did not
see any issues with the current Buy
American requirements and suggested
USDA leave the provision as is. One
State agency claimed that the Buy
American provision has not been
excessively abused and that adding an
additional layer of recordkeeping to an
already overwhelmed staff would create
unnecessary burden. One respondent
mentioned that their vendor is already
documenting their use of the Buy
American exception, and it only would
add another layer of tracking for them.
Another respondent recommended that
USDA leave the provision as is,
asserting that schools understand the
importance of limiting non-domestic
purchases to special circumstances.
Some respondents provided
alternatives or asked for clarification
about the proposed documentation and
tracking requirements. A State agency
noted that while the provision is not
difficult to comprehend, if USDA has
specific expectations for how tracking
and maintenance of documentation
should occur, those expectations should
be established in the rulemaking. This
respondent also suggested that USDA
should include what fiscal action, if
any, would result if those expectations
are not met. Another respondent
suggested that schools could meet the
documentation and tracking
requirements, but it would be difficult.
USDA requested public input on the
following questions related to the
proposals for exception documentation
and reporting requirements of the Buy
American requirements:
• Is the proposal to require school
food authorities to maintain
documentation showing that no more
than 5 percent of their total commercial
food costs per school year were for nondomestic foods feasible and is the
regulatory language clear enough for
school food authorities and State
agencies to implement and follow?
• For oversight purposes, USDA is
considering requiring school food
authorities to maintain an attestation
statement to attest that any nondomestic foods purchased under the 5
percent cap met one of the two limited
exceptions. Would this approach assist
school food authorities with the burden
associated with documentation
requirements? Does it help ensure that
any non-domestic food purchase under
the 5 percent cap was only a result of
utilizing one of the current limited
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32029
exceptions that USDA proposes to
codify through this rulemaking?
About five respondents provided
input on the first question about the
feasibility of the proposal for
documentation showing 5 percent cap
for non-domestic food purchases. One
respondent stated that the proposed rule
would increase administrative burden
by imposing additional tracking
requirements for school food
authorities. This respondent suggested
that the documentation requirements
would especially impact large school
districts.
Regarding the second question, nine
respondents, including State agencies,
trade associations, and individuals
provided input on the possible
approach of maintaining an attestation
statement that non-domestic food
purchases were less than the 5 percent
cap. Respondents provided mixed
feedback on this question. A State
agency and a few individuals expressed
that the attestation would help with the
documentation burden. However, some
respondents were confused on who the
attestation statement is intended for,
and whether school food authorities or
distributors would attest that any nondomestic foods purchased under the 5
percent cap met one of the two limited
exceptions.
A State agency suggested that the use
of an attestation statement, without
backup documentation, is not an
effective method of ensuring
compliance. This State agency argued
that the attestation statement would
create additional paperwork that would
not actually impact school food
authorities’ purchasing practices. Lastly,
one respondent stated the attestation
seems unnecessary.
Final Rule
This final rule requires school food
authorities to maintain documentation
to demonstrate use of one of the two
limited exceptions and institutes a
phased-in cap on non-domestic food
purchases. In response to public
comments, USDA is exempting products
found on the FAR 25.104 Nonavailable
articles list from the documentation
requirement. School food authorities
may use this list to deem a product as
not domestically available without
further documentation. Food products
that are found on the FAR Nonavailable
articles list will be included in the nondomestic expenditure ceiling
calculation. While this was not included
in the proposed rule, USDA requested
public comment on the feasibility of a
non-domestic cap, tracking of
purchases, and documentation
requirements, and gave notice to the
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public that changes may be incorporated
into a final rule based on public input.
Public comments requested that USDA
develop a non-domestic product
exception list. Allowing the exception
of products on the FAR 25.104
Nonavailable articles list from the Buy
American documentation requirement
addresses these public comments and
reduces administrative burden for
schools.
In addition, as stated above, in
response to respondent concerns about
burden, USDA notes that in accordance
with a recent Government
Accountability Office audit, USDA
Could Enhance Implementation of the
Buy American Provision (April 2023),147
USDA has committed to creating a
template for documenting Buy
American exceptions. USDA will also
explore any technical assistance
resources that will better help school
food authorities document nondomestic food purchases.
Accordingly, this final rule amends 7
CFR 210.21(d)(5)(iii) and
220.16(d)(5)(iii) to require school food
authorities to maintain documentation
to demonstrate use of one of the two
limited exceptions to the Buy American
provision.
Section 18C: Procurement Procedures
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Current Requirement
School lunch and breakfast program
regulations do not currently require
school food authorities to include any
Buy American provisions in required
documented procurement
procedures,148 solicitations, or
contracts. However, USDA guidance has
strongly advised school food authorities
to include safeguards in solicitation and
contract language to ensure Buy
American requirements are followed.149
Additionally, school food authorities are
required to monitor solicitation and
contract language to ensure that
contractors perform in accordance with
the terms, conditions, and specifications
of their contracts or purchase orders (2
CFR 200.318(b)).150
147 U.S Government Accountability Office. USDA
Could Enhance Implementation of the Buy
American Provision. April 2023. Available at:
https://www.gao.gov/assets/gao-23-105884.pdf.
148 School food authorities are required to have
documented procurement procedures, as per 2 CFR
200.318(a).
149 U.S. Department of Agriculture, Compliance
with and Enforcement of the Buy American
Provision in the National School Lunch Program,
June 30, 2017. Available at: https://
www.fns.usda.gov/nslp/compliance-enforcementbuy-american.
150 ‘‘Monitoring is also accomplished by
reviewing products and delivery invoices or
receipts to ensure the domestic food that was
solicited and awarded is the food that is received.
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Proposed Rule
USDA proposed to require school
food authorities to include the Buy
American provision in documented
procurement procedures, solicitations,
and contracts for foods and food
products procured using informal and
formal procurement methods, and in
awarded contracts.
Public Comments
USDA received 30 comments on the
proposals to include Buy American
requirements in procurement
procedures. Of these, 14 supported the
proposal and 16 were mixed. State
agencies, school districts, advocacy
groups, trade associations, dietitians,
and individuals submitted comments on
the proposal.
Many respondents supported the
proposal requiring school food
authorities to include the Buy American
provision in documented procurement
procedures, solicitations, and contracts.
Some respondents affirmed that they
have these proposed requirements in
their procurement procedures.
Other respondents provided mixed
feedback. While these respondents
agreed with the proposed provision,
some suggested expanding it. For
example, one respondent suggested that
solicitations and contracts require
distributors to attest to the domestic or
non-domestic origin of delivered
products. A professional organization
stated that all Federal nutrition
assistance programs should adopt the
Buy American provision. Another
respondent suggested that USDA bar
distributors who substitute nondomestic products for domestic
products without justification.
Final Rule
USDA agrees with respondents that
Buy American provisions should be
included in all procurement procedures.
This final rule requires school food
authorities to include the Buy American
requirements in documented
procurement procedures, solicitations,
and contracts for foods and food
products procured for school breakfast
and school lunch programs using
informal and formal procurement
methods, and in awarded contracts.
State agencies are required to verify
the inclusion of this language when
SFAs also need to conduct a periodic review of
storage facilities, freezers, refrigerators, dry storage,
and warehouses to ensure the products received are
the ones solicited, and awarded, and comply with
the Buy American provision.’’ U.S. Department of
Agriculture, Compliance with and Enforcement of
the Buy American Provision in the National School
Lunch Program, June 30, 2017. Available at: https://
www.fns.usda.gov/nslp/compliance-enforcementbuy-american.
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conducting Procurement oversight and
Administrative Reviews. USDA expects
that this requirement will ensure
vendors are aware of expectations at all
stages of the procurement process, in
addition to providing contractual
protection for school food authorities if
vendors fail to meet Buy American
obligations.
Accordingly, this final rule amends 7
CFR 210.21(d)(3) and 220.16(d)(3) to
require that Buy American provisions be
included in all procurement procedures.
Section 18D: Definition of
‘‘Substantially’’
Current Requirement
The National School Lunch Act
(NSLA, 42 U.S.C. 1760(n)(1)(B)) defines
a domestic product as ‘‘[a] food product
that is processed in the United States
substantially using agricultural
commodities that are produced in the
United States.’’ The current regulatory
language at 7 CFR 210.21(d)(1) and
220.16(d)(1) is identical to the statutory
language. To satisfy the statutory and
regulatory requirements, food products
purchased for child nutrition programs
must be processed in the United
States.151 However, USDA understands
that the meaning of the term
‘‘substantially’’ is not clearly defined.
Congressional report language
accompanying the original legislation
noted that ‘‘substantially means over 51
percent from American products.’’ 152
Therefore, USDA has stated in guidance
that ‘‘substantially’’ means over 51
percent of the final processed product
(by weight or volume) consists of
agriculture commodities that were
grown domestically, as determined by
the school food authority.153 The
guidance also states that products ‘‘from
Guam, American Samoa, Virgin Islands,
Puerto Rico, and the Northern Mariana
Islands are considered domestic
products under this provision as these
products are from the territories of the
U.S.’’
Proposed Rule
USDA proposed to codify a definition
of the statutory phrase ‘‘substantially
using agriculture commodities.’’ The
151 See also section 4207(b) of the Agriculture
Improvement Act of 2018, Public Law 115–334 (42
U.S.C. 1760).
152 U.S. House of Representatives. Child Nutrition
and WIC Reauthorization Amendments of 1998—
House Report 105–633. July 20, 1998. Available at:
https://www.govinfo.gov/content/pkg/CRPT105hrpt633/html/CRPT-105hrpt633.htm.
153 U.S. Department of Agriculture, Compliance
with and Enforcement of the Buy American
Provision in the National School Lunch Program,
June 30, 2017. Available at: https://
www.fns.usda.gov/nslp/compliance-enforcementbuy-american.
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definition, which USDA would codify at
7 CFR 210.21(d)(1)(ii)(A) and
220.16(d)(1)(ii)(A), was proposed as
follows: ‘‘Substantially using agriculture
commodities that are produced in the
United States’’ means over 51 percent of
a food product must consist of
agricultural commodities that were
grown domestically.
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Public Comments
USDA received 11 comments on the
proposal to codify the definition of
‘‘substantially using agriculture
commodities.’’ Of these, six supported
the proposal, one was opposed, and four
were mixed. State agencies, advocacy
groups, professional organizations,
dietitians, and individuals submitted
comments on the proposal.
Most respondents supported the
clarification. Some respondents stated
that the proposed clarification made
sense to them, and that the language
provided was welcome. One State
agency already requires school food
authorities to use this definition based
on its use in USDA guidance.
One State agency opposed the
proposal and stated that the proposed
definition does not meet the intent of
other Federal agencies’ Buy American
requirements as it allows for up to 49
percent of a food product to be nondomestic.
Mixed comments were generally
supportive but wanted USDA to go
further than the proposed 51 percent
threshold. A few respondents wanted
the threshold to be raised higher,
potentially up to 80 or 90 percent
instead of 51 percent. One respondent
wanted USDA to clarify that domestic
water does not count toward the 51
percent. Another respondent requested
that USDA consider that the term
‘‘substantial’’ is relative, open to
interpretation, and should be further
clarified in order to achieve desired
results.
USDA requested public input on the
following question related to codifying
the definition of substantially:
• Does the proposed definition of
‘‘substantially using agriculture
commodities that are produced in the
United States’’ meet the intent of the
Buy American requirements? If not,
what other suggestions do stakeholders
have for the definition?
Approximately three respondents
provided input on this question
regarding the intent of the Buy
American requirements. Respondents
generally agreed that the proposed
definition is consistent with the intent
of Buy American requirements.
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Final Rule
Proposed Rule
This final rule codifies the proposed
definition of ‘‘substantially’’ in the Buy
American provision at 7 CFR
210.21(d)(1)(ii)(A) and
220.16(d)(1)(ii)(A). Consistent with the
proposed rule, this definition reads as
follows: ‘‘Substantially using agriculture
commodities that are produced in the
United States’’ means over 51 percent of
a food product must consist of
agricultural commodities that were
grown domestically.
Although USDA acknowledges that
some respondents recommended a
threshold higher than 51 percent, this
definition reflects the Congressional
report language and USDA guidance as
mentioned above. USDA agrees with
supportive respondents and codifies the
proposed definition for ‘‘substantially’’
in this final rule.
Accordingly, this final rule amends 7
CFR 210.21(d)(1)(ii) and 220.16(d)(1)(ii)
to codify the definition of
‘‘substantially’’ in the Buy American
regulations.
USDA proposed to add language to
the regulations to codify how Buy
American applies to fish and fish
products in the school lunch and
breakfast programs. The proposed
change would be consistent with
current statutory requirements and
existing USDA policy guidance. USDA
expects that codifying these existing
requirements in regulation will improve
awareness of, and compliance with,
program requirements.
Section 18E: Clarification of
Requirements for Harvested Farmed
and Wild Caught Fish
Current Requirement
Current regulations do not include
language specific to the applicability of
the Buy American requirements to fish
or fish products. However, in 2019,
section 4207 of the Agriculture
Improvement Act of 2018 (Pub. L. 115–
334) clarified the Buy American
provision applies to fish harvested
‘‘within the Exclusive Economic Zone of
the United States, as described in
Presidential Proclamation 5030 (48 FR
10605; March 10, 1983), or . . . by a
United States flagged vessel.’’ USDA
published Buy American and the
Agricultural Improvement Act of
2018 154 and explained how to treat
harvested fish under the Buy American
requirement. The guidance stated that,
‘‘[i]n order to be compliant:
• Farmed fish must be harvested
within the United States or any territory
or possession of the United States.
• Wild caught fish must be harvested
within the Exclusive Economic Zone of
the United States or by a United States
flagged vessel.’’
Prior to the publication of the 2019
guidance, the Buy American provision
applied to fish as it would to any other
food.
154 U.S. Department of Agriculture. Buy American
and the Agriculture Improvement Act of 2018.
August 15, 2019. Available at: https://
www.fns.usda.gov/cn/buy-american-andagriculture-improvement-act.
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Public Comments
USDA received 11 comments on the
proposal to codify how Buy American
applies to fish and fish products in the
school lunch and breakfast programs. Of
these, four supported the proposed
standards and seven were mixed. State
agencies, professional associations,
industry respondents, and dietitians
submitted comments on the proposal.
Proponents generally stated the
clarification is acceptable to add to the
regulations. Other respondents
appreciated the clarification on what
criteria must be met for fish and fish
products to meet the Buy American
requirements but were concerned with
the challenges of identifying whether
fish were harvested within the
Exclusive Economic Zone and/or
whether the vessel used to catch the fish
was a ‘‘United States flagged vessel.’’
Final Rule
USDA agrees with respondents that
making the proposed change will
improve the understanding of program
requirements. This final rule codifies
language in regulations regarding how
the Buy American requirements apply
to fish and fish products offered in the
school lunch and breakfast programs. In
order to be compliant with Buy
American requirements, under this final
rule:
• Farmed fish must be harvested
within the United States or any territory
or possession of the United States.
• Wild caught fish must be harvested
within the Exclusive Economic Zone of
the United States or by a United States
flagged vessel.
This change is consistent with current
statutory requirements and existing
USDA policy guidance.
Accordingly, this final rule amends 7
CFR 210.21(d)(6) and 220.16(d)(6) to
codify language regarding how the Buy
American requirements apply to fish
and fish products offered in the school
lunch and breakfast programs.
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Section 19: Geographic Preference
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Current Requirement
Section 4302 of the Food,
Conservation, and Energy Act of 2008
(Pub. L. 110–246) 155 amended the
National School Lunch Act to direct the
Secretary of Agriculture to encourage
institutions operating child nutrition
programs to purchase unprocessed
locally grown and locally raised
agricultural products. Effective October
1, 2008, institutions receiving funds
through the child nutrition programs
could apply an optional geographic
preference for the procurement of
unprocessed locally grown or locally
raised agricultural products. This
provision applies to institutions
operating any of the child nutrition
programs, including the NSLP, SMP,
SBP, Fresh Fruit and Vegetable Program,
SFSP, and CACFP, as well as to
purchases made for these programs by
the USDA Department of Defense Fresh
Fruit and Vegetable Program. The
provision also applies to State agencies
making purchases on behalf of any of
the aforementioned child nutrition
program operators.
The Geographic Preference Option for
the Procurement of Unprocessed
Agricultural Products in Child Nutrition
Programs final rule (75 FR 20316, April
4, 2011) 156 went into effect on May 23,
2011. This final rule incorporated the
geographic preference option in
program regulations and defined the
term ‘‘unprocessed locally grown or
locally raised agricultural products,’’
which does allow for some minimal
processing, food handling, and
preservation techniques as defined, to
facilitate implementation by institutions
operating the child nutrition programs.
Language included in that final rule
indicates that ‘‘local’’ cannot be used as
a procurement specification (a written
description of the product or service
that the vendor must meet to be
considered responsive and responsible).
Currently, Federal regulations do not
prescribe the way that geographic
preference should be applied, or how
much preference can be given to local
products. Federal regulations also do
not define ‘‘local’’ for the purpose of
procuring local foods for use in child
nutrition programs. However, producers
155 The Food, Conservation, and Energy Act of
2008 (Pub. L. 110–246). June 18, 2008. Available at:
https://www.congress.gov/110/plaws/publ246/
PLAW-110publ246.pdf.
156 Geographic Preference Option for the
Procurement of Unprocessed Agricultural Products
in Child Nutrition Programs (75 FR 20316, April 4,
2011). Available at: https://www.federalregister.gov/
documents/2011/04/22/2011-9843/geographicpreference-option-for-the-procurement-ofunprocessed-agricultural-products-in-child.
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located in a specified geographic area
can be provided additional points or
credit calculated during a program
operator’s evaluation of proposals or
bids received in response to a
solicitation.157
Proposed Rule
USDA proposed to expand the
geographic preference option by
allowing locally grown, raised, or
caught as procurement specifications for
unprocessed or minimally processed
food items in the child nutrition
programs. This proposal intended to
increase the procurement of local foods
by child nutrition program operators
and ease procurement challenges for
operators interested in sourcing food
from local producers.
Public Comments
USDA received 389 comments
referencing the geographic preference
proposal, including 176 unique
comments. Of the total comments, 351
supported the proposal, including 138
unique comments, one was opposed,
and 37 were mixed. State agencies,
school nutrition professionals, advocacy
groups, industry respondents, dietitians,
elected officials, and individuals
submitted comments. Many respondents
mentioned that the geographic
preference proposal would support local
producers. Comments from advocacy
groups, State agencies, and an academic
institution indicated that the proposal
would allow local producers to be more
competitive and encourage local and
smaller-scale producers to submit bids
to sell local foods to child nutrition
program operators. A State agency noted
that the proposal would help larger
school districts and cooperatives of
smaller school districts coordinate with
small-scale producers to procure locally
without relying on the micro-purchase
procurement method. A couple of
advocacy groups and an individual
mentioned that the proposal would be
economically beneficial for local
producers and communities. Similarly,
a professional association suggested the
proposal would stimulate local
economies and keep money in school
communities. Advocacy groups, State
agencies, a professional organization,
and a dietitian expressed that the
proposal would make it easier for child
nutrition program operators to procure
local products for their meal programs
and reduce administrative barriers.
Some respondents shared other
potential benefits of the proposal, such
157 U.S. Department of Agriculture. Procurement
Geographic Preference Q&As. February 1, 2011.
Available at: https://www.fns.usda.gov/cn/
procurement-geographic-preference-qas.
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as mitigating supply chain disruptions
and fostering healthier communities. A
food manufacturer and an advocacy
group stated that they received positive
feedback from child nutrition operators
about the proposal. A few advocacy
groups also noted that schools that had
pre-existing relationships with local
suppliers reported fewer supply chain
disruptions and more reliable product
availability during the COVID–19
pandemic. One advocacy group and one
individual suggested that the proposal
would support more nutritious school
meals and foster connections between
students, local producers, and
communities. An individual stated that
local food procurement can also support
schools offering foods that better reflect
students’ food cultures and heritage. A
group of Federal elected officials stated
that the proposal would improve
domestic sourcing, relieve procurement
challenges, and allow more local foods
to be incorporated into school meals.
Some respondents provided mixed
feedback on the proposal or provided
suggestions. One State agency noted that
the proposal would make it easier for
program operators to procure local foods
but recommended that USDA provide
guidance on using a definition of
‘‘local’’ that does not reduce the number
of potential vendors that can respond to
a solicitation to a non-competitive level.
This respondent also recommended
guidance to support program operators
in conducting market research and
requests for information prior to issuing
solicitations. A State agency affirmed
this guidance would help program
operators avoid delays in awarding
contracts to qualified local vendors and
prevent program operators from having
to reissue solicitations. Another State
agency requested that USDA define the
term ‘‘local’’ in a way that clarifies
‘‘local’’ should be based on the source
of the agricultural product being
procured rather than the bidder’s
location. Multiple advocacy groups and
an individual recommended that the
proposed geographic preference
language be updated to allow for, or
encourage, other procurement
specifications to support varied
procurement values such as organic
certification, independent animal
welfare certifications, products
produced by historically underserved
producers, and more.
Several respondents supported the
proposal but raised concerns about the
potential increased costs of local foods.
An individual noted that the cost of
procuring local foods could be a barrier
for smaller schools and school districts.
Another respondent warned that a lack
of locally produced food in their area,
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and food safety concerns, would hinder
local purchasing. An advocacy group
stated that vendors should be required
to substantiate that local production
requirements are met and recommended
that cost incentives be provided to
support procurement of local food
products. A union, school food service
staff member, and an advocacy group
agreed that additional funding is needed
to make local procurement viable for
many program operators, especially in
certain States and territories. A State
agency and an advocacy group
expressed concerns about cost as a
barrier to local procurement among
CACFP operators.
USDA requested public input on the
following questions related to the
geographic preference expansion
proposal:
• Do respondents agree that this
approach would ease procurement
challenges for child nutrition program
operators interested in sourcing food
from local producers?
• Do respondents agree that this
approach would encourage smallerscale producers to submit bids to sell
local foods to child nutrition programs?
Several respondents provided input
on the first question, regarding whether
the proposed approach would ease
procurement challenges. Many
respondents indicated that expanding
school food authorities’ options for
geographic preference in procurement
would streamline local purchasing for
child nutrition program operators.
Advocacy groups, a trade association,
and a State agency noted that the
proposal would remove uncertainties
and facilitate clear, predictable
procurement processes. An academic
institution stated that not all program
operators are willing and able to apply
geographic preference in its current
form due to its complexity. This
respondent noted that the proposal
would ease procurement challenges and
enable program operators to spend less
time on the administrative aspects of the
procurement process and more time
incorporating local foods into program
menus. A professional organization and
dietitian expressed that the proposal
would help program operators that
operate smaller-scale programs more
easily purchase local products.
In response to the second question,
many respondents agreed that the
proposed approach would encourage
smaller-scale producers to submit bids
to sell foods to child nutrition programs.
Respondents emphasized that
expanding geographic preference
options would make local and smallscale producers more competitive in the
bidding process. A couple of advocacy
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groups and a State agency asserted that
the proposal would simplify bid
writing. One advocacy group suggested
that local and smaller food producers
have a hard time competing against
larger producers and distributors, and
multiple individuals and advocacy
groups emphasized that the proposal
could provide smaller local producers a
‘‘competitive edge’’. An academic
institution stated that the proposal
would encourage local producers to
submit bids and provide a steady market
for smaller-scale producers.
Final Rule
This final rule codifies, without
changes, USDA’s proposal to expand the
geographic preference option by
allowing child nutrition program
operators to use ‘‘locally grown’’,
‘‘locally raised’’, or ‘‘locally caught’’ as
procurement specifications (a written
description of the product or service
that the vendor must meet to be
considered responsive and responsible)
for unprocessed or minimally processed
food items in the child nutrition
programs. The definition of
unprocessed, and the minimal food
handling and processing techniques
allowed within that definition, remains
unchanged in this final rule (7 CFR
210.21(g)(2), 220.16(f)(2), 225.17(e)(2),
and 226.22(c)(1). USDA agrees with
comments that suggested this provision
will support increased procurement of
local foods by child nutrition program
operators. This change may encourage
smaller-scale producers to submit bids
to sell local foods to child nutrition
programs and may ease procurement
challenges for program operators
interested in sourcing food locally.
USDA will provide guidance and
resources on implementing this final
standard, including but not limited to:
updating the geographic preference
section of the Procuring Local Foods for
the Child Nutrition Programs guide,158
the Geographic Preference Fact
Sheet,159 and Geographic Preference
Q&As Part I 160 and Part II.161 These
resources and guidance respond to
158 U.S. Department of Agriculture. Procuring
Local Foods for the Child Nutrition Programs.
Available at: https://fns-prod.azureedge.us/sites/
default/files/resource-files/June22F2SProcurement
Guide508.pdf.
159 U.S. Department of Agriculture. Geographic
Preference Fact Sheet. Available at: https://
www.fns.usda.gov/f2s/geographic-preference.
160 U.S. Department of Agriculture. Procurement
Geographic Preference Q&As. February 1, 2011.
Available at: https://www.fns.usda.gov/cn/
procurement-geographic-preference-qas.
161 U.S. Department of Agriculture. Procurement
Geographic Preference Q&As: Part II. October 9,
2012. Available at: https://www.fns.usda.gov/cn/
procurement-geographic-preference-qas%E2%80%93-part-ii.
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32033
comments citing the need for program
operators to adopt a definition of
‘‘local’’ that will support fair and open
competition in the procurement and
bidding process. Updates to these
resources will also help program
operators choose appropriate
procurement methods; conduct market
research, requests for information, and
producer outreach as needed; and retain
appropriate documentation while
implementing this final standard. USDA
will continue to allow State agencies
and program operators to adopt their
own definition of ‘‘local’’ and will not
prescribe a Federal definition for the
purpose of procuring local foods for
child nutrition programs. Program
operators are encouraged to adopt
definitions of ‘‘local’’ that best suit their
distinct needs and goals, for example
based on their community’s unique
geography and climate, the availability
of local producers and manufacturers,
and program participants’ interest in
local products.
In response to comments requesting
that USDA allow procurement values
beyond local, such as certified organic
or certified by an independent animal
welfare program as procurement
specifications, USDA will clarify in
updated guidance and resources that
these and other similar production
standards are already allowable as
specifications in program operators’
procurement solicitations as long as
they do not overly restrict competition.
USDA will also continue to provide
training, technical assistance, and,
under certain circumstances as
available, financial support, to program
operators to help them mitigate costs
and other barriers to local food
procurement. Since January 2021,
USDA has provided:
• $200 million for States to purchase
local foods for schools through the Local
Food for Schools Cooperative
Agreement Program;
• Nearly $3.8 billion in Supply Chain
Assistance funds for schools to purchase
domestic foods, including $1.3 billion
for SY 2023–2024;
• $140 million for Equipment
Assistance Grants to help schools buy
kitchen equipment, which can help
them process local foods; and
• $94 million to provide children
with nutritious, local foods and
agricultural education through
expanded Farm to School
engagement.162
Accordingly, this final rule amends 7
CFR 210.21(g)(1), 215.14a(e),
162 U.S. Department of Agriculture. USDA
Support for School Meals. Available at: https://
www.fns.usda.gov/cn/support-schools.
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220.16(f)(1), 225.17(e)(1), and
226.22(c)(1), to codify the expansion of
the geographic preference option to
allow ‘‘locally grown’’, ‘‘locally raised’’,
or ‘‘locally caught’’ as procurement
specifications. Program operators may
begin implementing the expanded
geographic preference option in their
procurement processes immediately
following this rule’s effective date.
Program operators remain responsible
for complying with all Federal, State,
and local procurement regulations.
NSLP and SBP program operators’
compliance with Federal procurement
regulations will continue to be
monitored through State agency
oversight of procurement.
Section 20: Miscellaneous Changes
In addition to the major provisions of
this rulemaking, USDA is finalizing a
variety of miscellaneous changes to the
child nutrition program regulations. The
miscellaneous changes update
terminology used in the regulations,
remove outdated information, and
correct cross references. However, as
detailed below, this rule does not
finalize the proposed terminology
change for the meats/meat alternates
component. Additionally, USDA is
finalizing a severability clause in this
rulemaking, as detailed below. In the
event any changes made by this
rulemaking are to be held invalid or
unenforceable, USDA intends that the
other changes will remain. USDA has
further specified what requirement
would replace the invalidated change.
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Terminology Change: Protein Sources
Component [Not Finalized]
Current child nutrition program
regulations use the term ‘‘meats/meat
alternates’’ for the meal component that
includes beans and peas, whole eggs,
tofu, tempeh, meat, poultry, fish,
cheese, yogurt, soy yogurt, peanut butter
and other nut or seed butters, and nuts
and seeds. USDA proposed to change
the name of the meats/meat alternates
meal component in the NSLP, SBP, and
CACFP regulations to ‘‘protein sources.’’
Under this proposal, all references in 7
CFR parts 210, 220, and 226 to ‘‘meats/
meat alternates’’ would change to
‘‘protein sources.’’ The foods within this
meal component would remain
unchanged.
Public Comments
USDA received 240 comments on this
proposed terminology change, including
131 unique comments. Of these, 57
supported the proposal, all of which
were unique comments, 120 were
opposed, including 31 unique
comments, and 63 were mixed,
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including 43 unique comments.
Comments were submitted by State
agencies, school nutrition professionals,
advocacy groups, industry respondents,
dietitians, and CACFP sponsoring
organizations.
A dietitian argued that the proposed
meal component name of ‘‘protein
sources’’ sounded ‘‘much more
appealing’’ than meats/meat alternates.
Another respondent suggested protein
sources ‘‘makes more sense’’ as a meal
component name compared to meats/
meat alternates. An advocacy group
supported the change, maintaining that
the term ‘‘meats/meat alternates’’ creates
a negative perception of plant-based
foods and is confusing to child nutrition
operators, families, and students. A
school district agreed, suggesting the
proposed terminology change would
help in communications with families.
Similarly, an advocacy group suggested
that ‘‘terminology has changed’’ and
renaming the component would
improve understanding for school
nutrition professionals and families. A
school district noted that children
struggle to understand the current term
and maintained that ‘‘protein’’ is a
universally understood term that better
describes the component. A State
agency supported the change, but
requested USDA consider the burden
some States may face to revise and
reprint resources due to the change.
Opponents argued that the change
would require costly updates to
materials, would require significant
retraining, and would make it difficult
to determine which foods are creditable
under the protein source meal
component. For example, an industry
respondent stated that renaming the
meats/meat alternates component to the
protein sources component is akin to
renaming the milk component to the
calcium component, describing the
proposal as inaccurate and misleading.
An advocacy group agreed, citing
concerns about potential confusion with
protein-labeled food items, or specific
products such as protein bars and
protein shakes, which do not credit
toward the meats/meat alternates
component (and would not credit
toward the protein sources component,
if the change is finalized). This
respondent argued that implementing
this change would require significant
technical assistance. Further, the same
advocacy group maintained that the
proposed terminology change would
create financial burden for retraining
providers and developing new
documents and materials. A State
agency provided similar feedback,
asserting that the proposed terminology
change would require a ‘‘tremendous’’
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number of staff hours to update
documents. Another State agency also
cited concerns about the burden of
implementing this change and noted
that they have not encountered
problems with the current terminology.
Conversely, one school district
acknowledged that updating and
reprinting materials may be costly, but
still supported the change. This
respondent saw renaming the
component as an opportunity to
‘‘update and refresh’’ the program with
terms participants would understand.
An industry respondent suggested that
phasing in the change over several years
would allow industry to plan label
inventories and resource allocation to
minimize the anticipated impact of
making the terminology change.
A few respondents offered mixed
feedback or alternative suggestions. One
State agency recommended keeping the
meal component names ‘‘simple’’ and
suggested aligning with MyPlate, which
includes the following food groups:
fruits, vegetables, grains, protein foods,
and dairy. However, this respondent
noted that, due to the requirement to
offer milk with school meals, the
MyPlate dairy group would need to be
replaced with a milk group. An industry
respondent suggested that USDA name
the meal component ‘‘proteins’’ instead
of ‘‘protein sources’’ for brevity. An
advocacy group recommended that
USDA allow quinoa to credit toward the
protein sources component.
Additionally, this respondent
recommended that tofu and soy
products and beans, peas, and lentils be
allowed to credit as protein sources
even if they are not visually
recognizable. An advocacy group
encouraged USDA to provide ‘‘a
national list of definitive protein
sources’’ for child nutrition program
operators. A different advocacy group
stated that making this change in some
child nutrition programs, but not SFSP,
would create confusion for operators
that participate in multiple programs. A
State agency, school district, and
another respondent strongly encouraged
USDA to prioritize making similar
changes in SFSP to address
inconsistencies and align terminology
across all child nutrition programs.
Final Rule
In response to public comments,
USDA is not finalizing the proposal to
change the name of the meats/meat
alternates meal component in the NSLP,
SBP, and CACFP regulations to ‘‘protein
sources.’’ USDA appreciates concerns
that respondents raised with the
proposed terminology change, including
the challenge of updating State and
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local materials to reflect the change.
Although these changes could have
been accomplished over time, and State
and local operators would not have been
penalized for using the prior
terminology, USDA will not finalize this
proposed change given respondent
concerns. In addition, many
respondents from the CACFP
community recommended that USDA
assess the potential impacts of
terminology changes on all child
nutrition program operators prior to
making them. USDA will consider this
suggestion when considering potential
terminology changes in the future.
USDA also appreciates comments
regarding potential confusion about
foods that would credit toward the
‘‘protein sources’’ component. Although
the proposed terminology change would
not have changed current guidelines
regarding foods that may credit toward
the existing meats/meat alternates
component,163 164 USDA appreciates that
use of the word ‘‘source’’ in the
proposed component name could have
created confusion for operators. The
child nutrition programs use a foodbased menu planning approach, which
helps to ensure that children are offered
(and learn to build) meals that include
key food groups recommended by the
Dietary Guidelines. In the near term,
based on input from respondents, USDA
has determined the meats/meat
alternates component name better
reflects the food-based menu planning
approach.
USDA appreciates respondent
suggestions for other potential
component names, such as ‘‘proteins’’
and ‘‘protein foods.’’ USDA also
appreciates respondent feedback on
other changes USDA could make to the
meal components, including which
meal component certain foods credit
toward. However, for the reasons
detailed above, this final rule maintains
the meats/meat alternates component
name and does not make any changes to
food crediting guidelines for this
component.
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163 For
information on crediting the meat/meat
alternate component, see the Food Buying Guide for
Child Nutrition Programs, available at: https://
www.fns.usda.gov/tn/food-buying-guide-for-childnutrition-programs.
164 Exceptions include certain smoothie
ingredients and pasta products made from vegetable
flours. See Question 104: U.S. Department of
Agriculture, Meal Requirements Under the NSLP &
SBP: Q&A for Program Operators Updated to
Support the Transitional Standards Effective July 1,
2022, March 2, 2022. Available at: https://
www.fns.usda.gov/cn/sp052022-questions-answersprogram-operators.
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32035
Terminology Change: Beans, Peas, and
Lentils
and the starchy vegetable subgroup,
respectively.
The Dietary Guidelines, 2020–2025,
changed the terminology for the
‘‘legumes (beans and peas)’’ vegetable
subgroup to ‘‘beans, peas, and
lentils.’’ 165 The foods within this
vegetable subgroup did not change.
USDA proposed to change the name of
the ‘‘legumes (beans and peas)’’
vegetable subgroup in the school meal
pattern regulations to align with the
Dietary Guidelines. Under this proposal,
all references in 7 CFR parts 210 and
220 to ‘‘legumes (beans and peas)’’
would change to ‘‘beans, peas, and
lentils’’ for consistency with the
terminology used in the Dietary
Guidelines. The foods within this
vegetable subgroup and the related
requirements would remain unchanged.
USDA also proposed to change
references to ‘‘beans and peas
(legumes)’’ in 7 CFR part 226 to ‘‘beans,
peas, and lentils’’.
Final Rule
USDA is finalizing the proposal to
change the name of the ‘‘legumes (beans
and peas)’’ vegetable subgroup in the
school meal pattern regulations and to
change references to ‘‘beans and peas
(legumes)’’ in CACFP regulations. This
final rule will instead refer to ‘‘beans,
peas, and lentils,’’ consistent with the
terminology used in the Dietary
Guidelines. Additionally, USDA is
extending this change to SFSP based on
public input encouraging consistent
terminology across child nutrition
programs.
USDA acknowledges that some
respondents recommended including
the word ‘‘dry’’ before the NSLP
vegetable subgroup name ‘‘beans, peas,
and lentils,’’ to differentiate from green
peas and green beans. However, USDA
has opted to maintain the proposed
terminology change without
modification. As noted, the vegetable
subgroup name in the Dietary
Guidelines is ‘‘beans, peas, and lentils.’’
Therefore, the terminology for the NSLP
vegetable subgroup name finalized in
this rule aligns with the Dietary
Guidelines. To clarify, the vegetables
that count toward this subgroup in the
school meal programs have not changed;
only the name of the subgroup has
changed. Green peas will continue to
count toward the starchy vegetable
subgroup, and fresh green beans will
continue to count toward the ‘‘other’’
vegetable subgroup.166
While USDA encourages stakeholders
to update materials to reflect this
change, USDA anticipates a transition
period and does not expect these
updates to happen immediately. State
and local operators will not be
penalized for using the prior
terminology.
Accordingly, this final rule amends 7
CFR parts 210, 220, 225, and 226 to
change references to ‘‘legumes (beans
and peas)’’ and ‘‘beans and peas
(legumes)’’ to ‘‘beans, peas, and lentils.’’
Child nutrition program operators are
not required to change menus or
Public Comments
USDA received 134 comments on this
proposed terminology change, including
45 unique comments. Comments were
submitted by State agencies, advocacy
groups, and individuals. An advocacy
group stated that the proposed change
‘‘brings the school nutrition language
into alignment with the language used
in the Dietary Guidelines.’’ A State
agency agreed, suggesting that this
change would improve ‘‘consistency
with terminology used in the Dietary
Guidelines.’’ A few other respondents,
including advocacy groups and
individuals, expressed support for the
terminology change.
While fewer respondents opposed the
‘‘beans, peas, and lentils’’ terminology
change compared to the ‘‘protein
sources’’ terminology change, those who
did gave similar reasons for their
opposition. For example, a State agency
opposed the change, suggesting that
terminology changes would require all
materials that use the terms to be redone
and redistributed which would be costly
and time consuming. A few
respondents, including a State agency,
did not oppose the change, but
suggested adding ‘‘dry’’ in ‘‘beans, peas,
and lentils’’ to avoid confusing
vegetables in this subgroup with fresh
green beans and peas, which count
toward the ‘‘other’’ vegetable subgroup
165 See ‘‘About Beans, Peas, and Lentils,’’ page 31.
U.S. Department of Agriculture and U.S.
Department of Health and Human Services. 2020–
2025 Dietary Guidelines for Americans. 9th Edition.
December 2020. Available at: https://
www.dietaryguidelines.gov/.
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166 According to the Dietary Guidelines, ‘‘Green
peas and green (string) beans are not counted in the
beans, peas, and lentils subgroup because the
nutrient content of these vegetables is more similar
to vegetables in other subgroups.’’ The Dietary
Guidelines consider green peas to be a starchy
vegetable, and green beans to be part of the ‘‘other’’
vegetable subgroup. NSLP regulations for the
vegetable subgroups reflect the Dietary Guidelines.
See ‘‘About Beans, Peas, and Lentils,’’ page 31. U.S.
Department of Agriculture and U.S. Department of
Health and Human Services. 2020–2025 Dietary
Guidelines for Americans. 9th Edition. December
2020. Available at: https://
www.dietaryguidelines.gov/.
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operations as a result of this
terminology change, but are encouraged
to proactively transition to the new
terminology.
add the correct cross-reference
(§ 210.10(o)).
7 CFR 210.15 Reporting and
Recordkeeping
7 CFR 210.7 Reimbursement for
School Food Authorities
Technical Corrections
• 7 CFR 210.7(d): Remove erroneous
cross-reference to § 220.23, which is no
longer in effect.
• 7 CFR 210.7(e): Correct erroneous
cross-reference to afterschool snacks
section of regulation (from
§ 210.10(n)(1) to § 210.10(o)(1)).
• 7 CFR 210.15(b)(9): Correct
erroneous cross-reference to local school
wellness policies by replacing
§ 210.30(f) with § 210.31(f).
This final rule makes several
additional technical corrections to the
regulations, which are outlined by
regulatory section below. These
proposed technical corrections would
not make substantive changes to the
child nutrition programs. Instead, the
proposed corrections, which are
reflected in the proposed amendatory
language, generally fall into the
following categories:
• Removing outdated terminology or
updating terminology and definitions
for consistency across regulations.
• Removing outdated implementation
dates.
• Removing requirements that are no
longer in effect.
• Reordering the school meal pattern
meal component paragraphs to reflect
the order used in the meal pattern
tables.
• Revising meal pattern tables to
improve usability.
• Correcting erroneous crossreferences.
Please see Note about Amendatory
Instructions, below, for information
about how these changes are addressed
in the amendatory instructions.
7 CFR part 210: National School Lunch
Program
7 CFR 210.2
Definitions
• Remove definition of CND, which is
no longer in use.
• Replace the definition of Food
component with the definition of Meal
component.
• Redesignate paragraphs to use
numbers instead of letters (e.g., (1) and
(2) instead of (a) and (b)) in the
definitions of Reduced price lunch,
School, State agency, and State
educational agency.
• Remove outdated language in the
definition of Residential child care
institution.
• Revise the definition of Yogurt to
reflect changes to the FDA standard of
identity of yogurt.
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7 CFR 210.3
Administration
• 7 CFR 210.3(a): Remove sentence
referring to ‘‘the CND,’’ a term no longer
in use.
7 CFR 210.4 Cash and Donated Food
Assistance to States
• 7 CFR 210.4(b)(3): Remove incorrect
cross-reference to afterschool snacks
section of regulations (§ 210.10(n)) and
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7 CFR 210.9
Agency
Agreement With State
• 7 CFR 210.9(b)(21): Remove
outdated implementation date.
• 7 CFR 210.9(c): Remove incorrect
cross-reference to afterschool snacks
section of regulations (§ 210.10(n)(1))
and add the correct cross-reference
(§ 210.10(o)(1)).
7 CFR 210.10 Meal Requirements for
Lunches and Requirements for
Afterschool Snacks
• Change all references from ‘‘food
components’’ to ‘‘meal components’’.
• 7 CFR 210.10(c): Add minimum
creditable amount for all meal
components in meal pattern table
footnotes.
• In meal pattern tables, add or revise
titles for clarity.
• In meal pattern tables, change
footnotes to use numbers instead of
letters and combine related footnotes to
improve readability.
7 CFR 210.11 Competitive Food
Service and Standards
• 7 CFR 210.11(m) (redesignated to
paragraph (l)): Combine fluid milk and
milk alternatives paragraphs and crossreference § 210.10(d)(1) and (2) instead
of repeating milk standards in § 210.11.
• 7 CFR 210.11(m) (redesignated to
paragraph (l)): Adjust punctuation to
improve readability.
• 7 CFR 210.11(i) and (n): Remove
outdated implementation dates.
7 CFR 210.12 Student, Parent, and
Community Involvement
• 7 CFR 210.12(e): Correct erroneous
cross-reference to local school wellness
policies by replacing § 210.30(d) with
§ 210.31(d).
7 CFR 210.14
Resource Management
• 7 CFR 210.14(e): Remove outdated
implementation date.
• 7 CFR 210.14(e)(5)(ii)(D): Remove
outdated implementation date.
• 7 CFR 210.14(e)(6)(iii): Remove
outdated language.
• 7 CFR 210.14(f): Remove outdated
implementation date.
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7 CFR 210.18
Administrative Reviews
• 7 CFR 210.18(h)(2)(x): Correct
erroneous cross-reference to local school
wellness policies by replacing § 210.30
with § 210.31.
7 CFR 210.19 Additional
Responsibilities
• 7 CFR 210.19(f): Remove outdated
implementation date.
7 CFR 210.20 Reporting and
Recordkeeping
• 7 CFR 210.20(a)(6) and (7): Remove
requirements that are no longer in effect.
• 7 CFR 210.20(b)(10): Remove
requirement that is no longer in effect.
7 CFR 210.29
Management Evaluations
• 7 CFR 210.29(d)(3): Remove
incorrect physical address for the Food
and Nutrition Service.
7 CFR Part 220: School Breakfast
Program
7 CFR 220.2
Definitions
• Remove erroneous cross-references
to § 220.23, which is no longer in effect.
• Remove definitions of CND, OA,
and OI, which are no longer in use.
• Revise definitions of Department,
Distributing agency, Fiscal year, FNS,
FNSRO, Free breakfast, Reduced price
breakfast, Reimbursement, School Food
Authority, and State agency for
consistency with definitions in 7 CFR
210.2.
• Remove the definition of Food
component and instead add the
definition of Meal component.
• Remove the definitions of Menu
item and Nutrient Standard Menu
Planning/Assisted Nutrient Standard
Menu Planning, which are no longer in
use under food-based menu planning.
• Remove the second definition of
Non-profit, which is duplicative and
outdated.
• Remove outdated language in the
definition of Residential child care
institution.
• Revise the definition of Yogurt to
reflect changes to the FDA standard of
identity of yogurt.
7 CFR 220.3 Administration
• 7 CFR 220.3(a): Remove sentence
referring to ‘‘the CND,’’ a term no longer
in use.
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7 CFR 220.7 Requirements for
Participation
• 7 CFR 220.7(e)(2), (4), (5), (9), and
(13): Revise language for clarity and
remove outdated references.
• 7 CFR 220.7(h): Correct erroneous
cross-reference to local school wellness
policies by replacing § 210.30 with
§ 210.31.
7 CFR 220.8
Breakfasts
Meal Requirements for
• Change all references from ‘‘food
components’’ to ‘‘meal components’’.
• 7 CFR 220.8(a)(2): Change reference
from ‘‘reimbursable lunch’’ to
‘‘reimbursable breakfast’’.
• 7 CFR 210.10(c): Add minimum
creditable amount for all meal
components in meal pattern table
footnotes.
• In meal pattern tables, add or revise
titles for clarity.
• In meal pattern tables, change
footnotes to use numbers instead of
letters and combine related footnotes to
improve readability.
• 7 CFR 210.10(c)(2)(i)(A): Remove
reference to crediting enriched macaroni
at lunch.
• 7 CFR 210.10(c)(2)(v): Add fluid
milk as a listed meal component in
paragraph (c)(2).
7 CFR 220.13 Special Responsibilities
of State Agencies
• 7 CFR 220.13(b)(3): Remove
requirements that are no longer in effect.
• 7 CFR 220.13(c): Remove outdated
references to ‘‘OI’’.
• 7 CFR 220.13(f)(3): Remove
erroneous cross-reference to § 220.23,
which is no longer in effect.
• 7 CFR 220.13(l): Remove
requirement that is no longer in effect.
7 CFR 220.14 Claims Against School
Food Authorities
• Remove references to the term
‘‘CND’’, which is no longer in use.
7 CFR Part 225: Summer Food Service
Program
7 CFR 225.16 Meal Service
Requirements
• Change all references from ‘‘food
components’’ to ‘‘meal components’’.
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7 CFR part 226: Child and Adult Care
Food Program
7 CFR 226.2
Definitions
• Remove outdated language in the
definition of ‘‘Functionally impaired
adult’’.
• Add definition for ‘‘meal
component’’.
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7 CFR 226.20 Requirements for Meals
• Change all references from ‘‘food
components’’ to ‘‘meal components’’.
• Change all references from ‘‘grains’’
to ‘‘grain items’’ within the footnotes to
meal pattern tables.
• Update the meats/meat alternates
row at 7 CFR 226.20(c) in the Meal
Patterns for Children Age 1 through 18
and Adult Participants to use ounce
equivalents and refer to meats/meat
alternates sources generally, instead of
listing specific foods within the
category.
• In meal pattern tables, revise certain
footnotes for clarity and combine related
footnotes to improve readability.
Note About Amendatory Instructions
As detailed above, USDA is making a
variety of minor technical changes in
this rulemaking. For example, this rule
removes outdated implementation dates
and makes minor wording changes
throughout the school meal program
regulations to reflect current
terminology. At the direction of the
Office of the Federal Register,167 instead
of drafting the specific and targeted
amendatory instructions to make these
individual changes, USDA is providing
full context for these changes by
including not only the revised content,
but also the unchanged content that
appears adjacent to the changed text. As
such, large sections of the existing
regulations are reprinted in the
amendatory instructions of this rule
without change, beyond the minor
technical corrections detailed above. All
substantive changes made by this
rulemaking are explained in this
preamble.
Severability
USDA is finalizing a severability
clause for changes to the meal pattern
requirements made by this rulemaking.
In the event any changes made by this
rulemaking were to be held invalid or
unenforceable, USDA intends the
remainder of the changes to remain in
place. USDA further specifies what
requirement would replace the
invalidated change. This final rule adds
a new paragraph (r) to 7 CFR 210.10
(NSLP meal pattern requirements)
providing that if any provision of such
section is held to be invalid or
unenforceable by its terms, or as applied
to any person or circumstances, it shall
be severable from that section and not
affect the remainder thereof. In the
event of such holding of invalidity or
167 Office of the Federal Register. Amendatory
instruction: Revise and Republish. Available at:
https://www.archives.gov/federal-register/write/
ddh/revise-republish.
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32037
unenforceability of a provision, the
regulations provide that the meal
pattern requirement covered by that
provision would revert to the version
that immediately preceded the
invalidated provision. This final rule
adds similar paragraphs to 7 CFR 220.8
(SBP meal pattern requirements), and 7
CFR 226.20 (CACFP meal pattern
requirements).
Section 21: Summary of Changes
This section provides a high-level
overview of the provisions finalized in
this rulemaking. It includes:
• A descriptive summary of changes;
and
• A table detailing the changes,
including the child nutrition program or
programs that the changes apply to, and
their implementation dates.
21A: Descriptive Summary of Changes
This section provides a narrative
summary of the changes finalized in this
rulemaking, including the
implementation dates.
Section 2: Added Sugars
This rulemaking finalizes the
following added sugars limits in the
school lunch and breakfast programs:
• Product-based limits: this
rulemaking implements the following
product-based limits for school meals;
these limits must be implemented by SY
2025–2026:
• Breakfast cereals: limited to no
more than 6 grams of added sugars per
dry ounce.
• Yogurt: limited to no more than 12
grams of added sugars per 6 ounces.
• Flavored milk: limited to no more
than 10 grams of added sugars per 8
fluid ounces or, for flavored milk sold
as a competitive food for middle and
high schools, 15 grams of added sugars
per 12 fluid ounces.
• Weekly dietary limit: this
rulemaking implements a dietary
specification limiting added sugars to
less than 10 percent of calories per week
in the school lunch and breakfast
programs; this weekly limit, which must
be implemented by SY 2027–2028, is in
addition to the product-based limits
described above.
This rulemaking also extends the
product-based added sugars limits for
breakfast cereals and yogurt to CACFP;
this change must be implemented by
October 1, 2025. These added sugars
limits replace the existing total sugars
limits for breakfast cereals and yogurt in
CACFP.
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Section 3: Milk
Section 3A: Flavored Milk
This final rule maintains the current
regulation allowing all schools to offer
fat-free and low-fat milk, flavored and
unflavored, to K–12 students, with the
new proposed added sugars limit for
flavored milk. This final rule also
continues to allow SMP and CACFP
operators to offer fat-free and low-fat
milk, flavored and unflavored, to
participants ages 6 and older. Because
this rule finalizes the current flavored
milk requirements, child nutrition
program operators will not need to make
changes to their menus to comply with
this provision, beyond complying with
the product-based added sugars limit for
flavored milk in Section 2: Added
Sugars upon implementation.
Section 3B: Fluid Milk Substitutes:
Responses to Request for Input
This final rule reorganizes the NSLP
regulatory text related to fluid milk
substitutes for non-disability reasons.
This rule moves the regulatory text
explaining the non-disability fluid milk
substitute requirements from paragraph
(m) of 7 CFR 210.10—which discusses
exceptions and variations allowed in
reimbursable meals—to paragraph (d) of
7 CFR 210.10—which discusses the
fluid milk requirements. Schools are not
required to change menus or operations
as a result of this technical change.
This final rule does not make any
substantive changes to the nondisability fluid milk substitute request
process outlined in regulation; USDA
does not have the authority to change
the statutory requirements for nondisability fluid milk substitutes.
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Section 3C: Fluid Milk Substitutes:
Nutrient Requirements
As a conforming amendment, this
final rule changes the units for vitamin
A and vitamin D requirements for fluid
milk substitutes in all child nutrition
programs. Instead of 500 IUs, the unit
for the vitamin A requirement is now
150 mcg retinol activity equivalents
(RAE) per 8 fluid ounces. Instead of 100
IUs, the unit for the vitamin D
requirement is now 2.5 mcg per 8 fluid
ounces. Child nutrition program
operators are not required to change
menus or operations as a result of this
technical change.
Section 4: Whole Grains
This final rule maintains the current
whole grains requirement that at least
80 percent of the weekly grains offered
in the school lunch and breakfast
programs are whole grain-rich, based on
ounce equivalents of grains offered. It
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also codifies the definition of ‘‘whole
grain-rich’’ in NSLP, SBP, and CACFP
regulations, to mean that the grain
content of a product is between 50 and
100 percent whole grain. Lastly, this
final rule updates the definition of
‘‘entre´e item’’ in the competitive food
service regulations to clarify that both
whole-grain rich and enriched grain
entre´es offered as part of a reimbursable
school meal may qualify as an ‘‘entre´e
item’’ when sold a` la carte as a ‘‘Smart
Snack.’’ Because this rule finalizes the
current whole grain-rich requirements
and whole grain-rich definition, child
nutrition program operators will not
need to make changes to comply with
the whole grain-rich provision of this
rule.
Section 5: Sodium
This final rule maintains current
sodium limits at school lunch and
breakfast through June 30, 2027, and
implements one reduction in school
lunch and breakfast sodium limits that
schools must implement by July 1, 2027.
As suggested by numerous stakeholders,
this final rule also commits to
conducting a study on potential
associations between sodium reduction
and student participation in school
meals.
Section 6: Meats/Meat Alternates at
Breakfast
This final rule codifies the combined
grains and meats/meat alternates meal
component at K–12 breakfast and
removes the requirement for schools to
offer 1.0 ounce equivalent of grains each
day at breakfast. Schools may offer
grains, meats/meat alternates, or a
combination of both to meet the
minimum ounce equivalents in this
combined component requirement. This
change provides schools with more
menu planning flexibility at breakfast.
Schools are not required to change
menus or operations as a result of this
provision.
Section 7: Substituting Vegetables for
Grains in Tribal Communities
The final rule codifies the proposal to
add school food authorities and schools
that are tribally operated, operated by
the Bureau of Indian Education, and
that serve primarily American Indian or
Alaska Native children to the list of
schools at 7 CFR 210.10(c)(3) and
220.8(c)(3) that may serve vegetables to
meet the grains requirement in NSLP
and SBP. For SFSP and CACFP, USDA
finalizes the proposal to revise 7 CFR
225.16(f)(3) and 226.20(f) to allow
sponsors, institutions, and facilities, as
applicable, that serve primarily
American Indian or Alaska Native
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participants to substitute vegetables for
grains or breads. Additionally, this final
rule allows all schools, sponsors,
institutions, and facilities in Guam and
Hawaii to serve vegetables to meet the
grains or breads requirement. These
changes provide child nutrition program
operators an optional menu planning
flexibility. Program operators are not
required to change menus or operations
as a result of this provision.
Section 8: Traditional Indigenous Foods
This final rule codifies the proposal to
explicitly state in regulation that
traditional Indigenous foods may be
served in reimbursable school meals.
Regulations at 7 CFR 210.10(c)(7) and
220.8(c)(4) will include the definition of
traditional foods from the Agriculture
Improvement Act of 2014, as amended
(25 U.S.C. 1685(b)(5)), which defines
traditional food as ‘‘food that has
traditionally been prepared and
consumed by an [American] Indian
tribe,’’ including wild game meat, fish,
seafood, marine mammals, plants, and
berries. Schools are not required to
change menus or operations as a result
of this technical change.
Section 9: Afterschool Snacks
This final rule aligns NSLP snack
meal pattern requirements for K–12
children with the CACFP snack meal
pattern requirements, as required by the
National School Lunch Act (NSLA, 42
U.S.C. 1766a(d)). Additionally, this rule
finalizes the provision from the 2020
proposed rule to revise the definition of
Child. This change clarifies that
children who are age 18 and under at
the start of the school year may receive
reimbursable NSLP snacks, consistent
with statute (NSLA, 42 U.S.C. 1766a(b)).
As with the proposed rule, this final
rule changes all regulatory references in
7 CFR part 210 from ‘‘meal
supplements’’ to ‘‘afterschool snacks.’’
The change to NSLP snack meal pattern
requirements must be implemented by
July 1, 2025.
Section 10: Substituting Vegetables for
Fruits at Breakfast
This final rule continues to allow
schools to substitute vegetables for fruits
in the SBP and simplifies the vegetable
variety requirement. Under this final
rule, schools choosing to offer
vegetables at breakfast one day per
school week have the option to offer any
vegetable, including a starchy vegetable.
Schools that choose to substitute
vegetables for fruits at breakfast on two
or more days per school week are
required to offer vegetables from at least
two different subgroups. The vegetable
subgroups that schools may choose from
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include dark green, red/orange, beans,
peas, and lentils, starchy, and ‘‘other’’
vegetables.
Section 11: Nuts and Seeds
This final rule codifies the proposal to
allow nuts and seeds to credit for the
full meats/meat alternates component in
all child nutrition programs and meals,
removing the 50 percent crediting limit
for nuts and seeds at breakfast, lunch,
and supper. This change provides child
nutrition program operators more menu
planning flexibility. Program operators
are not required to change menus or
operations as a result of this provision.
Section 12: Beans, Peas, and Lentils at
Lunch
This final rule codifies the option for
schools to count beans, peas, and lentils
offered as a meat alternate at lunch
toward the weekly beans, peas, and
lentils vegetable subgroup requirement.
Under this option, as with the current
requirement, menu planners would
determine which overall meal
component beans, peas, and lentils
would count toward: the vegetable meal
component, or the meats/meat alternates
meal component. Beans, peas, and
lentils offered to students as either
vegetables or meat alternates can count
toward the weekly requirement to offer
1⁄2 cup of beans, peas, and lentils. This
change provides schools with more
menu planning flexibility at lunch.
Schools are not required to change
menus or operations as a result of this
provision.
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Section 13: Competitive Foods: Bean
Dip Exemption
This final rule adds bean dip to the
list of foods exempt from the total fat
standard in the Smart Snacks
regulations. This exemption applies to
products marketed as hummus, as well
as bean dips made from any variety of
beans, peas, or lentils. Bean dip will
continue to be subject to the saturated
fat standard for Smart Snacks, as well as
all other Smart Snacks requirements.
This change provides schools the option
to sell bean dip as a Smart Snack.
Schools are not required to change
operations as result of this provision.
Section 14: Meal Modifications
This final rule codifies in regulation
that State licensed healthcare
professionals and registered dietitians
may write medical statements to request
meal modifications on behalf of child or
adult participants with disabilities in
the school meal programs and CACFP.
It also defines a State licensed
healthcare professional as an individual
authorized to write medical
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prescriptions under State law. The
change requiring schools, institutions,
and facilities to accept medical
statements from registered dietitians
must be implemented by July 1, 2025,
for the school meal programs, and by
October 1, 2025, for CACFP. This final
rule also updates and reorganizes the
regulatory text to distinguish between
disability and non-disability requests
more clearly. Regarding non-disability
requests, this final rule also encourages
schools, institutions, and facilities to
meet participants’ non-disability dietary
preferences when planning and
preparing school and CACFP meals.
Section 15: Clarification on Potable
Water Requirements
This final rule maintains the
requirement that schools make plain
potable water available and accessible
without restriction to children at no
charge during the meal service. To
clarify this requirement, this final rule
adds the word ‘‘plain’’ to the potable
water regulations. Schools are not
required to change menus or operations
as a result of this technical change.
Section 16: Synthetic Trans Fats
This final rule removes the dietary
specification prohibiting synthetic trans
fat in the school lunch and breakfast
programs, and in foods sold to children
on campus during the school day.
Under this change, schools will no
longer need to include the synthetic
trans fat prohibition in their
procurement documentation, and State
agencies will no longer need to review
product labels or manufacturer
specifications during Administrative
Reviews for compliance with the
synthetic trans fat dietary specification.
Section 17: Professional Standards:
Hiring Exception for Medium and Large
Local Educational Agencies
This final rule codifies the proposal to
allow State agency discretion to approve
the hiring of an individual to serve as
a school nutrition program director in a
medium or large local educational
agency, for individuals who have 10
years or more of school nutrition
program experience but who do not
hold a bachelor’s or an associate’s
degree. Directors hired under this
exception must have a high school
diploma or GED. At the discretion of the
State agency, this change provides local
educational agencies an optional hiring
flexibility. Schools are not required to
change menus or operations as a result
of this provision.
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32039
Section 18: Buy American
18A: Limited Exceptions to the Buy
American Requirement
This final rule maintains the
following limited exceptions for the Buy
American provision and codifies them
in regulation. The two limited
circumstances when school food
authorities may purchase non-domestic
foods are when:
• The product is listed on the FAR
25.104 Nonavailable articles list and/or
is not produced or manufactured in the
U.S. in sufficient and reasonably
available quantities of a satisfactory
quality; or
• Competitive bids reveal the costs of
a U.S. product are significantly higher
than the non-domestic product.
This final rule will also gradually
phase in a cap on non-domestic food
costs. This cap applies to total
commercial food costs. The nondomestic food costs cap will be phased
in as follows:
• Beginning in SY 2025–2026, the
non-domestic food cost cap will be 10
percent.
• Beginning in SY 2028–2029, the
non-domestic food cost cap will be 8
percent.
• Beginning in SY 2031–2032, the
non-domestic food cost cap will be 5
percent.
18B: Exception Documentation and
Reporting Requirements
This final rule requires school food
authorities to maintain documentation
to demonstrate use of one of the two
limited exceptions for non-domestic
food purchases, as detailed in Section
18A. In response to public comments,
this final rule exempts products on the
FAR 25.104 Nonavailable articles lists
from the documentation requirement.
18C: Procurement Procedures
This final rule requires school food
authorities to include the Buy American
requirements in documented
procurement procedures, solicitations,
and contracts for foods and food
products procured for the school lunch
and breakfast programs.
18D: Definition of ‘‘Substantially’’
This final rule codifies the following
definition of ‘‘substantially’’ in the Buy
American regulations: ‘‘Substantially
using agriculture commodities that are
produced in the United States means
over 51 percent of a food product must
consist of agricultural commodities that
were grown domestically.’’ This change
is consistent with existing USDA policy
guidance. Therefore, schools are not
expected to need to change menus or
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operations as a result of this technical
change.
18E: Clarification of Requirements for
Harvested Farmed and Wild Caught
Fish
This final rule codifies language in
regulations regarding how the Buy
American requirements apply to fish
and fish products offered in the school
lunch and breakfast programs. In order
to be compliant with Buy American
requirements, under this final rule:
• Farmed fish must be harvested
within the United States or any territory
or possession of the United States.
• Wild caught fish must be harvested
within the Exclusive Economic Zone of
the United States or by a United States
flagged vessel.
This change is consistent with
statutory requirements and existing
USDA policy guidance. Therefore,
schools are not required to change
menus or operations as a result of this
technical change.
Section 19: Geographic Preference
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This final rule expands the geographic
preference option by allowing ‘‘locally
grown’’, ‘‘locally raised’’, or ‘‘locally
caught’’ as procurement specifications
(a written description of the product or
service that the vendor must meet to be
considered responsive and responsible)
for unprocessed or minimally processed
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food items in the child nutrition
programs. The definition of
unprocessed, and the minimal food
handling and processing techniques
allowed within that definition, remains
unchanged in this final rule. This final
rule continues to allow State agencies
and program operators to adopt their
own definition of ‘‘local’’ and does not
prescribe a Federal definition of ‘‘local’’
for the purpose of procuring local foods
for child nutrition programs.
Section 20: Miscellaneous Changes
This final rule makes a variety of
miscellaneous changes to the child
nutrition program regulations. This rule:
• Removes outdated terminology and
updates terminology and definitions for
consistency across regulations.
• Removes outdated implementation
dates and requirements that are no
longer in effect.
• Makes a variety of other technical
corrections and changes to the
regulations, as detailed in Section 20:
Miscellaneous Changes.
Child nutrition program operators are
not required to change menus or
operations as a result of the
miscellaneous changes in this
rulemaking.
21B: Table of Changes by Program
The chart below details each
provision of the rule, the section of the
rule that covers the provision, the
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programs impacted, and the
implementation date. For ease of
reference, the acronyms used in the
chart below are:
• NSLP—National School Lunch
Program (7 CFR part 210)
• SMP—Special Milk Program (7 CFR
part 215)
• SBP—School Breakfast Program (7
CFR part 220)
• SFSP—Summer Food Service
Program (7 CFR part 225)
• CACFP—Child and Adult Care Food
Program (7 CFR part 226)
As noted in the Implementation Dates
column, certain provisions of this rule
address requirements that are already in
effect. This rulemaking provides an
implementation date for these
provisions to account for minor
corrections and reorganization of the
regulatory text. Child nutrition program
operators will not need to make any
changes to comply with requirements
that are already in effect. Additionally,
many provisions of this rule provide
optional administrative or operational
flexibilities. Child nutrition program
operators are not required to change
menus or operations to comply with
provisions that provide optional
administrative or operational
flexibilities. These provisions are noted
in the Implementation Dates column.
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Provision
Rule Section
Added Sugars:
Product-based Limits
for Breakfast Cereals
Section 2
Programs
Impacted
NSLP, SBP,
CACFP
32041
Implementation Date
NSLP/SBP: July 1,
2025
CACFP: October 1,
2025
Note: CACFP total sugars
limits remain in place
through September 30,
2025
Added Sugars:
Product-based Limits
for Yogurt
Section 2
NSLP, SBP,
CACFP
NSLP/SBP: July 1,
2025
CACFP: October 1,
2025
Note: CACFP total sugars
limits remain in place
through September 30,
2025
VerDate Sep<11>2014
Section 2
Section 2
Section 3A
Milk: Fluid Milk
Substitutes:
Responses to
Request for Input
Section 3B
Milk: Fluid Milk
Substitutes: Nutrient
Requirements
Section 3C
Whole Grains:
Whole Grain-rich
Requirement
Section 4
Whole Grains:
Whole Grain-rich
Definition
Section 4
20:11 Apr 24, 2024
Jkt 262001
NSLP, NSLP
Smart Snacks in
School, SBP
NSLP, SBP
NSLP, NSLP
Smart Snacks in
School, SMP, SBP,
CACFP
NSLP, SBP
July 1, 2025
July 1, 2027
July 1, 2024
Note: this rule finalizes the
current flavored milk
requirements; child
nutrition operators will not
need to make changes to
comply with this
requirement, beyond those
changes described in
Section 2: Added Su)!ars
July 1, 2024
Note: schools are not
required to change menus
or operations as a result of
this vrovision
NSLP, SMP, SBP,
CACFP
NSLP, SBP
July 1, 2024
Note: child nutrition
program operators are not
required to change menus
or operations as a result of
this provision
July 1, 2024
Note: this rule finalizes the
current whole grain-rich
requirements; child
nutrition operators will not
need to make changes to
comply with this
requirement
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NSLP, SBP,
CACFP
Fmt 4701
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July 1, 2024
Note: this rule codifies
existing whole grain-rich
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Added Sugars:
Product-based Limits
for Flavored Milks
Added Sugars:
Weekly Limit
Milk: Flavored Milk
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definition; child nutrition
operators will not need to
make changes to comply
with this reauirement
Sodium
Section 5
NSLP, SBP
July 1, 2024
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Meats/Meat
Alternates at
Breakfast
Section 6
Substituting
Vegetables for
Grains in Tribal
Communities
Section 7
Traditional
Indigenous Foods
Section 8
Afterschool Snacks:
NSLP Snacks Meal
Pattern Requirements
Afterschool Snacks:
All Other Changes
Section 9
NSLP Snacks
July 1, 2025
Section 9
NSLP Snacks
July 1, 2024
Substituting
Vegetables for Fruits
at Breakfast
Section 10
Nuts and Seeds
Section 11
Note: schools are not
required to change menus
or operations as a result of
this provision
NSLP, SBP
July 1, 2024
Note: child nutrition
program operators are not
required to change menus
or operations as a result of
this provision
July 1, 2024
Note: schools following the
current regulatory
requirement are not
required to change menus
or operations as a result of
this provision
July 1, 2024
SBP
Note: schools following the
current regulatory
requirement are not
required to change menus
or operations as a result of
this provision
Section 12
Competitive Foods:
Bean Dip Exemption
Section 13
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NSLP, SBP, SFSP,
CACFP
Note: schools are not
required to change menus
or operations as a result of
this provision
Beans, Peas, and
Lentils at Lunch
20:11 Apr 24, 2024
July 1, 2024
SBP
NSLP, SBP, SFSP,
CACFP
NSLP
July 1, 2024
Note: child nutrition
program operators are not
required to change menus
or operations as a result of
this provision
July 1, 2024
Note: schools are not
required to change menus
or operations as a result of
this provision
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Snacks in Schools
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July 1, 2024
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Note: this rule maintains
the current sodium limits
for the first three years of
implementation; schools
will not be required to
implement farther sodium
reductions until July 1,
2027
Federal Register / Vol. 89, No. 81 / Thursday, April 25, 2024 / Rules and Regulations
32043
Note: schools are not
required to change menus
or operations as a result of
this provision
Meal Modifications:
Requirement to
Accept Medical
Statements from
Registered Dietitians
Meal Modifications:
All Other Changes
Section 14
NSLP, SBP,
CACFP
Section 14
NSLP, SBP,
CACFP
Clarification on
Potable Water
Requirements
Section 15
Synthetic Trans Fat
Section 16
Section 17
NSLP, NSLP
Smart Snacks in
School, SBP
NSLP, SBP
NSLP, SBP
Geographic
Preference
Section 19
NSLP, SMP, SBP,
SFSP, CACFP
Terminology
Change: Beans, Peas,
and Lentils
Section 20
20:11 Apr 24, 2024
July 1, 2024
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July 1, 2024
Note: the cap for nondomestic food purchases
will be gradually phased in
over time
NSLP, SBP, SFSP,
CACFP
Section 22: Procedural Matters
Jkt 262001
July 1, 2024
Note: schools are not
required to change menus
or operations as a result of
this vrovision
Note: schools are not
required to change menus
or operations as a result of
this provision
Executive Orders 12866, 13563, and
14094
Executive Orders 12866 and 13563
direct agencies to assess all costs and
benefits of available regulatory
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July 1, 2024
Note: schools are not
required to change menus
or operations as a result of
this vrovision
Section 18A18E
BILLING CODE 3410–30–C
July 1, 2024
Note: child nutrition
program operators are not
required to change menus
or operations as a result of
this vrovision
Fmt 4701
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July 1, 2024
Note: child nutrition
program operators are not
required to change menus
or operations as a result of
this vrovision
July 1, 2024
Note: child nutrition
program operators are not
required to change menus
or operations as a result of
this provision
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety
effects, distributive impacts, and
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Professional
Standards: Hiring
Exception for
Medium and Large
Local Educational
Agencies
Buy American
NSLP, SBP
NSLP/SBP: July 1,
2025
CACFP: October 1,
2025
32044
Federal Register / Vol. 89, No. 81 / Thursday, April 25, 2024 / Rules and Regulations
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equity). Executive Order 13563
emphasizes the importance of
quantifying both costs and benefits, of
reducing costs, of harmonizing rules,
and of promoting flexibility. This
rulemaking has been determined to be
significant under section 3(f)(1) of
Executive Order 12866, as amended by
Executive Order 14094, and was
reviewed by the Office of Management
and Budget in conformance with
Executive Order 12866.
Regulatory Impact Analysis
As required for all rules that have
been designated as significant under
section 3(f)(1) Executive Order 12866 by
the Office of Management and Budget,
a Regulatory Impact Analysis was
developed for this rule. It follows this
rule as an Appendix. The following
summarizes the conclusions of the
regulatory impact analysis:
Need for Action: This rule establishes
requirements that align school meals
with the goals of the Dietary Guidelines
for Americans, 2020–2025, and that
support the continued provision of
nutritious school meals. To develop this
rule, USDA considered broad
stakeholder input, including written
comments received in response to the
2023 proposed rule, oral comments
submitted during listening sessions, and
a comprehensive review of the Dietary
Guidelines for Americans, 2020–2025.
The proposed rule included a focus on
sodium, whole grains, milk, and added
sugars. This rule represents the next
stage of the rulemaking process to
permanently update and improve school
meal pattern requirements. In response
to public comments, this rule revises the
proposed implementation of sodium
reductions and maintains current milk
requirements allowing schools to offer
flavored milk to all K–12 children.
Further, this rule finalizes a variety of
changes to school meal requirements
from the 2020 proposed rule,
Simplifying Meal Service and
Monitoring Requirements in the
National School Lunch and School
Breakfast Programs. Updates for the
Child and Adult Care Food Program
(CACFP) and Summer Food Service
Program (SFSP) are also included in
certain provisions of this rule. Finally,
this rulemaking will strengthen Buy
American requirements.
Benefits: Making the changes outlined
in this rule can lead to improved health
outcomes in the long-term. The
Regulatory Impact Analysis details
potential health benefits because of
sodium reductions and added sugars
limits over time, as well as information
regarding the methodology for selecting
specific limits. Sections of this rule on
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20:11 Apr 24, 2024
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traditional Indigenous foods may have
some potential health benefits for
American Indian and Alaska Native
children and allow for schools to serve
more culturally relevant ingredients.
This rule maintains the current milk
requirements from the transitional
standards rule, allowing all schools to
offer flavored or unflavored milks to K–
12 children. USDA also maintains the
requirements that at least 80 percent of
the weekly grain offerings in school
meals each week are whole grain-rich.
This rule builds on the progress schools
have already made in improving school
meals to support healthy diets for
school children while also allowing for
operational or administrative
flexibilities for geographic preference,
meats/meat alternates at breakfast, nuts
and seeds, and beans, peas and lentils
at lunch. Minor shifts and technical
corrections are included in other
provisions, such as updating definitions
and terminology in the regulations.
Costs: USDA estimates this rule
would cost schools between $0.02 and
$0.04 per meal or an average of $206
million annually including both the SBP
and NSLP starting in SY 2024–2025,
accounting for the fact that the
requirements will be implemented
gradually and adjusting for annual
inflation.168 While some changes—such
as aligning the NSLP snack meal pattern
with that of CACFP or simplifying
requirements for schools that choose to
substitute vegetables for fruits at
breakfast—are estimated to reduce
school food costs or have no cost
impact, others are estimated to increase
food costs. The costs to schools are
mainly due to a shift in purchasing
patterns and increased labor costs. An
increase in cost due to the Buy
American final rule is a result of
additional labor and food costs. The
changes in this rulemaking are gradual,
achievable, and realistic for schools and
recognize the need for strong nutrition
requirements in school meals. There are
no estimated changes in Federal costs
due to the changes in this final rule, as
the rule does not impact the Federal
reimbursement rate for school meals
and is not expected to significantly
impact baseline participation.
Regulatory Flexibility Act
The Regulatory Flexibility Act (5
U.S.C. 601–612) requires Agencies to
analyze the impact of rulemaking on
small entities and consider alternatives
that would minimize any significant
168 Using 2023 dollars and not adjusting for
annual inflation results in $1.256 billion dollars
over eight school years (over nine fiscal years) or
$52 to $227 million annually ($0.03 per meal), see
appendix.
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impacts on a substantial number of
small entities. This rule would have a
significant impact on a substantial
number of small entities.
The requirements established by this
rule apply to school districts, which
meet the definitions of ‘‘small
governmental jurisdiction’’ and ‘‘small
entity’’ in the Regulatory Flexibility Act.
Overall, about 60 percent of school food
authorities operating child nutrition
programs are considered ‘‘small,’’ or
having less than 999 students.169 Under
the National School Lunch Act (NSLA,
42 U.S.C. 1758(f)), schools participating
in the school lunch or breakfast program
are required to serve meals that are
consistent with the goals of the most
recent Dietary Guidelines and that
consider the nutrient needs of children
who may be at risk for inadequate food
intake and food insecurity. This final
rule amends 7 CFR parts 210 and 220
that govern school lunch and breakfast
program requirements, including the
nutrition requirements that schools are
required to meet to receive Federal
reimbursement for program meals. The
changes in this final rule further align
school nutrition requirements with the
goals of the Dietary Guidelines for
Americans, 2020–2025, consistent with
statute.
Significant Alternatives
As discussed in Section 3A: Flavored
Milk and Section 4: Whole Grains,
USDA considered two proposals for the
milk provision and a proposal and
alternative for the whole grains
provision.
For milk, the proposed rule included
two alternatives:
• Alternative A: Proposed to allow
flavored milk (fat-free and low-fat) at
school lunch and breakfast for high
school children only, effective SY 2025–
2026. Under this alternative, USDA
proposed that children in grades K–8
would be limited to a variety of
unflavored milk. The proposed
regulatory text for Alternative A would
allow flavored milk for high school
children only (grades 9–12). Flavored
milk would be subject to the new
proposed added sugars limit.
• Alternative B: Proposed to continue
to allow all schools to offer fat-free and
low-fat milk, flavored and unflavored, to
K–12 children, with the new proposed
added sugars limit for flavored milk.
169 See Appendix A. U.S. Department of
Agriculture. Results of USDA’s Food and Nutrition
Service-Administered School Food Authority
Survey II on Supply Chain Disruption and Student
Participation. July 2023. Available at: https://fnsprod.azureedge.us/sites/default/files/resource-files/
SFASurvey-II-Supply-Chain-072523.pdf.
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Federal Register / Vol. 89, No. 81 / Thursday, April 25, 2024 / Rules and Regulations
For whole grains, the proposed rule
included a proposal and an alternative:
• The rule proposed to maintain the
current requirement that at least 80
percent of the weekly grains offered in
the school lunch and breakfast programs
are whole grain-rich, based on ounce
equivalents.
• The rule requested public input on
an alternative that would require that all
grains offered in the school lunch and
breakfast programs be whole grain-rich,
except that one day each school week,
schools may offer enriched grains.
USDA encouraged public input on the
options provided for the milk and whole
grains provisions, as well as all other
aspects of the proposed rule. In some
cases, USDA posed specific questions
for public input to help inform the final
rule. For example, as noted in Section
2: Added Sugars, USDA requested
public input on whether the proposed
implementation dates would provide
appropriate lead time to successfully
implement the proposed added sugars
limits. As noted in Section 4: Sodium,
USDA requested input on what sodium
limits would be achievable for schools
and industry, while supporting lowersodium meals for children. USDA also
requested public input on the proposed
implementation schedule, as well as the
number and level of sodium reductions
proposed in the rule. USDA indicated
that the Department would use public
input received in response to the
proposed rule to help inform the final
rule.
USDA received 130 public comments
from school districts or schools, as well
as about 340 comments from school
nutrition professionals. Some of these
respondents provided details about their
school type, and several addressed
specific concerns of small or rural
schools. For example, one respondent
indicated that they work in a ‘‘small
school district’’ with no central kitchen
‘‘and not enough staff,’’ and suggested
that these factors make it very hard to
do scratch cooking. Another respondent
who noted they work at a small charter
school also raised concerns about meal
preparation, noting that they ‘‘do not
have the space, equipment and staff to
cook meals from scratch.’’ An advocacy
group representing small and rural
schools added that schools would need
to prepare more meals from scratch to
further limit sodium. The same
respondent noted that smaller schools
may not have the funds to hire
registered dietitians to assist with menu
planning. A school food service
professional noted that ‘‘small school
systems will struggle to make menu
adjustments’’ to meet the proposed
sodium reductions. Another school food
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20:11 Apr 24, 2024
Jkt 262001
service professional noted that in small
schools, staff ‘‘wear many hats’’ and
have limited time and resources. This
respondent was especially concerned
about further sodium reductions. While
they expressed support for reducing
sodium, they suggested USDA consider
the impact to student participation and
consumption of meals when
determining further reductions. An
advocacy group representing State rural
education associations asserted that the
proposed sodium limits would reduce
compliant products available to rural
schools, which would make it difficult
to meet the updated sodium limits.
Regarding the proposed added sugars
limits, a State agency suggested that
requiring product-based limits and a
weekly limit would make it more
difficult to successfully administer the
programs, especially for smaller schools.
An advocacy group representing rural
schools asserted that the proposed
added sugars limits and sodium
reductions would reduce student
participation, increase costs, and make
it harder for rural schools to procure
compliant products. An industry
respondent maintained that rural
schools may have an easier time
implementing the proposed productbased added sugars limits, compared to
the proposed weekly added sugars limit.
However, a State agency argued that
small and rural schools often face
limited product options and may not
have access to products that meet the
proposed product-based added sugars
limits. Regarding the proposed limit on
grain-based desserts at breakfast, a
respondent who works at a small charter
school asserted that USDA would need
to ‘‘come up with some solutions for
what to serve for breakfast grains’’ if
grain-based desserts, such as toaster
pastries and fruit turnovers, are limited
at breakfast under the final rule.
A few respondents provided input on
the milk and whole grain proposals
from the small or rural school
perspective. A State agency noted that
they have several schools where
students from grades 6–12 attend school
in the same building. This State agency
noted that these smaller schools would
face challenges implementing milk
Alternative A. For example, smaller
schools may not have extra refrigeration
space to store flavored milk during the
K–5 meal service. Other State agencies
raised similar concerns, noting that in
some smaller schools, elementary and
middle school students may share one
breakfast or lunch period, and it would
be difficult to restrict flavored milk for
some students but not others. An
advocacy group representing small and
rural schools raised concerns about the
PO 00000
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32045
potential decrease in student
consumption of milk, if flavored milk is
restricted.
Regarding whole grains, one school
food service professional who stated
that they work at a ‘‘small school with
limited access to distributors’’
supported the proposal to maintain the
80 percent whole grain-rich
requirement. This respondent suggested
the 80 percent whole grain-rich
requirement allows them to occasionally
offer enriched tortillas and egg noodles.
A respondent that identified as a small
and rural school agreed, stating support
for the 80 percent whole-grain rich
requirement. Another respondent
representing small and rural schools
suggested that USDA not ‘‘confuse
menu planners by changing the whole
grain-rich requirements’’ and supported
maintaining the current 80 percent
whole grain-rich requirement.
As discussed throughout the
preamble, this rulemaking is based on a
comprehensive review of the Dietary
Guidelines, robust stakeholder input on
school nutrition requirements, and
lessons learned from prior rulemakings.
With this rule, USDA aims to integrate
each of these factors in a way that
prioritizes children’s health while
ensuring that the nutrition requirements
are achievable for all schools. USDA
recognizes that small school districts,
like all school districts, will face
increased costs and potential challenges
in implementing this rule. These costs
are not significantly greater for small
school districts than for larger ones, as
implementation costs are driven
primarily by factors other than school
district size. Additionally, as noted,
about 60 percent of school food
authorities operating child nutrition
programs are considered ‘‘small,’’ or
having less than 999 students.170
Considering that the majority of school
food authorities are small, USDA
expects the cost impact data presented
in the Regulatory Impact Analysis
reflects small school food authorities
and that there would not be significant
differential impacts on them as a result
of this rule. Nevertheless, USDA does
not discount the special challenges that
some smaller school districts may face.
As a group, small school districts may
have less flexibility to adjust resources
in response to immediate budgetary
needs. As noted in public comments,
some respondents cited challenges that
170 See appendix A. U.S. Department of
Agriculture. Results of USDA’s Food and Nutrition
Service-Administered School Food Authority
Survey II on Supply Chain Disruption and Student
Participation. July 2023. Available at: https://fnsprod.azureedge.us/sites/default/files/resource-files/
SFASurvey-II-Supply-Chain-072523.pdf.
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small school districts face with limited
time and resources, which could make
making menu changes at a rapid pace
challenging. Therefore, USDA expects
that the phased-in implementation
period for meal pattern changes
finalized in this rule will provide these
school districts opportunity for advance
planning.
In addition, USDA considered public
comments from small and rural school
districts, and organizations representing
them when determining the final
requirements. For example, as discussed
in Section 3A: Flavored Milk, USDA
recognized that implementing
Alternative A would be operationally
challenging for small schools, where
children from many grade levels may
share cafeteria space. USDA also
appreciates concerns that respondents
raised regarding a lack of refrigerated
storage space for flavored milk in small
schools. This rule finalizes milk
Alternative B, which maintains the
current requirement allowing all schools
to offer fat-free and low-fat milk,
flavored and unflavored, to K–12
children. As discussed in Section 4:
Whole Grains, this final rule maintains
the current requirement that at least 80
percent of the weekly grains offered by
ounce equivalent are whole grain-rich,
which respondents noted has been
successfully implemented by many
schools. USDA also considered
respondent input on other provisions in
this rulemaking. For example, based on
stakeholder feedback, this rule does not
finalize the proposed limit on grainbased desserts offered at breakfast.
Additionally, based on public input,
this final rule allows schools more time
to gradually reduce sodium and
includes a commitment from USDA to
conduct a study on the potential
associations between sodium reduction
and student participation. USDA
expects that this change from the
proposed rule will make the sodium
limits more achievable for schools,
including small schools, as it will allow
more time for menu adjustments and
product reformulation. With this rule,
USDA intends to improve the school
meal nutrition requirements in a way
that is practical and attainable for all
schools.
More detailed information about the
costs associated with provisions of this
rulemaking may be found in the
Regulatory Impact Analysis.
Unfunded Mandates Reform Act
Title II of the Unfunded Mandates
Reform Act of 1995 (UMRA), Public
Law 104–4, establishes requirements for
Federal agencies to assess the effects of
their regulatory actions on State, local
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20:11 Apr 24, 2024
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and Tribal governments and the private
sector. Under section 202 of the UMRA,
the Department generally must prepare
a written statement, including a cost
benefit analysis, for proposed and final
rules with ‘‘Federal mandates’’ that may
result in expenditures by State, local or
Tribal governments, in the aggregate, or
the private sector, of $146 million or
more (when adjusted for inflation; GDP
deflator source: Table 1.1.9 at https://
www.bea.gov/iTable) in any one year.
When such a statement is needed for a
rule, section 205 of the UMRA generally
requires the Department to identify and
consider a reasonable number of
regulatory alternatives and adopt the
most cost effective or least burdensome
alternative that achieves the objectives
of the rule. This rule has UMRA
impacts, discussed in the Regulatory
Impact Analysis conducted by USDA in
connection with this rule which
includes a cost/benefit analysis and
explains the options considered to
update the school meal patterns based
on the Dietary Guidelines for
Americans, 2020–2025.
Executive Order 12372
The NSLP, SMP, SBP, SFSP, and
CACFP are listed in the Catalog of
Federal Domestic Assistance under
NSLP No. 10.555, SMP No. 10.556, SBP
No. 10.553, SFSP No. 10.559, and
CACFP No. 10.558, respectively, and are
subject to Executive Order 12372, which
requires intergovernmental consultation
with State and local officials (see 2 CFR
chapter IV). Since the child nutrition
programs are State-administered,
USDA’s FNS Regional Offices have
formal and informal discussions with
State and local officials, including
representatives of Indian Tribal
Organizations, on an ongoing basis
regarding program requirements and
operations. This provides USDA with
the opportunity to receive regular input
from program administrators and
contributes to the development of
feasible program requirements.
Federalism Summary Impact Statement
Executive Order 13132 requires
Federal agencies to consider the impact
of their regulatory actions on State and
local governments. Where such actions
have federalism implications, agencies
are directed to provide a statement for
inclusion in the preamble to the
regulations describing the agency’s
considerations in terms of the three
categories called for under section
(6)(b)(2)(B) of Executive Order 13132.
This rule has federalism impacts which
are discussed below.
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Prior Consultation With State Officials
As detailed in the proposed rule,
USDA received input from various
stakeholders through listening sessions
and public comments prior to drafting
the proposed rule. USDA held over 50
listening sessions with stakeholder
groups that represent national, State,
and local interests.171 USDA also
received over 8,000 public comments on
the transitional standards final rule
prior to drafting the proposed rule.
These comments, from State agencies,
advocacy groups, school districts, and
other stakeholders, helped to inform the
proposed rule. To develop this rule,
USDA considered over 136,000 public
comments received on the proposed
rule. State agencies, school nutrition
professionals, advocacy groups,
industry respondents, professional
associations, school districts, CACFP
sponsoring organizations, dietitians, and
individuals submitted public comments
on the proposed rule.
Nature of Concerns and the Need To
Issue This Rule
As noted in Section 1: Background,
child nutrition program stakeholders
that commented on the proposed rule
raised concerns that changes to the
school meal patterns could negatively
impact student participation and
consumption of meals. Stakeholders
also cited issues with product
availability, suggesting that the
proposed added sugars limits and
sodium reductions would cause vendors
to leave the school nutrition market and
make it more difficult for schools to
procure products for meals. The
proposed implementation timeframes
were also a concern for some
stakeholders, who argued that schools
would need more time to successfully
implement the changes. Stakeholders
also raised concerns about school food
finances. For example, a school district
respondent suggested that transitioning
to new or updated requirements would
involve purchasing new products,
which they asserted would be more
expensive. This respondent also raised
concerns about the potential for reduced
student participation under the updated
requirements, which they noted could
171 As detailed in the proposed rule, USDA held
listening sessions with Academy of Nutrition and
Dietetics, American Beverage Association,
American Commodity Distribution Association,
American Heart Association, Center for Science in
the Public Interest, Education Trust, FoodCorps,
Friends of the Earth, International Dairy Foods
Association, National Congress of American
Indians, National Indian Education Association,
School Nutrition Association, State agencies, Urban
School Food Alliance, Whole Grains Council
members, and local school districts, including
tribally-run schools, and others.
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negatively impact school food finances.
Another respondent raised similar
concerns in connection to the sodium
proposal, suggesting that reduced
sodium could result in less palatable
meals. This respondent suggested that
less palatable meals could lead to
reduced student participation in school
meals, which could negatively impact
school food finances. Other respondents
suggested that schools are still dealing
with high food costs and supply chain
issues or provided general comments
asserting that more nutritious foods
(such as foods with less added sugars)
could be more expensive compared to
foods that schools currently offer.
Stakeholders from the CACFP
community expressed concern that
USDA did not adequately engage the
CACFP community prior to publishing
the proposed rule.
USDA greatly appreciates input that
child nutrition program stakeholders
provided in advance of the proposed
rule and through the public comment
process. In developing this rule, USDA
considered the Dietary Guidelines,
robust stakeholder input, and lessons
learned from prior rulemakings. Further,
according to the National School Lunch
Act (NSLA, 42 U.S.C. 1758(f)), schools
participating in the school lunch or
breakfast program are required to serve
lunches and breakfasts that are
consistent with the goals of the most
recent Dietary Guidelines and that
consider the nutrient needs of children
who may be at risk for inadequate food
intake and food insecurity. This
rulemaking also advances the mission of
USDA, which includes a focus on
providing effective, science-based
public policy leadership in food and
nutrition.172
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Extent To Which We Meet Those
Concerns
Through this rulemaking, USDA is
updating the school meal patterns in a
practical and durable manner for the
long-term. USDA has considered the
impact of this rulemaking on State
agencies, schools, and other child
nutrition program operators. This rule
aims to update the meal patterns to
align with the goals of the Dietary
Guidelines for Americans, 2020–2025 in
172 USDA’s mission is: ‘‘To serve all Americans
by providing effective, innovative, science-based
public policy leadership in agriculture, food and
nutrition, natural resource protection and
management, rural development, and related issues
with a commitment to deliverable equitable and
climate-smart opportunities that inspire and help
America thrive.’’ See: U.S. Department of
Agriculture. Strategic Plan Fiscal Years 2022–2026.
Available at: https://www.usda.gov/sites/default/
files/documents/usda-fy-2022-2026-strategicplan.pdf.
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the most effective and least burdensome
manner. For example, while USDA
considered a more restrictive milk
alternative in the proposed rule, this
rule will continue to allow schools to
offer all K–12 students flavored milk.
Similarly, while USDA considered an
alternative approach in the proposed
rule, this rule will maintain the current
whole grains requirement for school
meals, preventing State agencies and
schools from needing to implement a
new whole grains requirement. When
compared to the proposed rule, this rule
also allows schools even more time to
gradually reduce sodium in school
meals and does not go as far as the
proposed rule. USDA has also
committed to conducting a study on
potential associations between sodium
reduction and student participation in
the school meal programs. Further, this
rulemaking includes changes that
simplify program operations, for
example, by easing restrictions around
substituting vegetables for fruits at
breakfast; aligning crediting for nuts and
seeds, and nut and seed butters, across
child nutrition programs; allowing
schools to more easily offer meats/meat
alternates at breakfast; and providing an
additional exception to the professional
standards hiring requirements for
medium and large local educational
agencies. This rulemaking retains other
existing regulatory provisions to the
extent possible.
Executive Order 12988, Civil Justice
Reform
This rule has been reviewed under
Executive Order 12988, Civil Justice
Reform. This rule is intended to have
preemptive effect with respect to any
State or local laws, regulations or
policies which conflict with its
provisions or which would otherwise
impede its full and timely
implementation. This rule permits State
or local agencies operating the school
lunch or breakfast programs to establish
more rigorous nutrition requirements or
additional requirements for school
meals that are not inconsistent with the
nutritional provisions of the
rulemaking. Such additional
requirements are permissible as part of
an effort by a State or local agency to
enhance school meals or the school
nutrition environment. To illustrate,
State or local agencies are permitted to
establish more restrictive sodium limits.
The sodium limits are stated as
maximums (e.g., ≤) and could not be
exceeded; however, lesser amounts than
the maximum could be served.
Likewise, State or local agencies are
permitted to accelerate implementation
of the dietary specification for added
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32047
sugars in an effort to reduce added
sugars in school meals at an earlier date.
However, State or local agencies cannot,
for example, allow schools to exceed the
added sugars limits in this rulemaking
as that would be inconsistent with the
rulemaking’s provisions. This rule is not
intended to have retroactive effect. Prior
to any judicial challenge to the
provisions of the final rule, all
applicable administrative procedures
must be exhausted.
Civil Rights Impact Analysis
FNS has reviewed the rule, in
accordance with Departmental
Regulation 4300–004, ‘‘Civil Rights
Impact Analysis,’’ to identify and
address any major civil rights impacts
the rule might have on participants on
the basis of age, race, color, national
origin, sex (including gender identity
and sexual orientation), or disability.
Due to the unavailability of data, FNS is
unable to determine whether this rule
will have an adverse or disproportionate
impact on protected classes among
entities that administer and participate
in Child Nutrition Programs. However,
the FNS Civil Rights Division finds that
the current mitigation and outreach
strategies outlined in the regulations
and this Civil Rights Impact Analysis
(CRIA) provide ample consideration to
applicants’ and participants’ ability to
participate in the NSLP, SBP, SMP, and
CACFP. The promulgation of this rule
will impact school food authorities and
CACFP institutions and facilities by
updating certain program requirements,
including nutrition requirements.
Participants in the NSLP, SMP, SBP,
and CACFP may be impacted when the
requirements under the rule are
implemented by school food authorities
and CACFP institutions and facilities.
The changes are expected to provide
participants in NSLP, SBP, SMP, and
CACFP wholesome and appealing meals
that reflect the goals of the Dietary
Guidelines and meet their needs and
preferences.
Executive Order 13175
Executive Order 13175 requires
Federal agencies to consult and
coordinate with Tribes on a
government-to-government basis on
policies that have Tribal implications,
including regulations, legislative
comments or proposed legislation, and
other policy statements or actions that
have substantial direct effects on one or
more Indian Tribes, on the relationship
between the Federal Government and
Indian Tribes, or on the distribution of
power and responsibilities between the
Federal Government and Indian Tribes.
What follows is a summary of Tribal
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implications are present and
consultation/coordination taken to date.
This regulation has Tribal
implications. As noted in the proposed
rule, USDA held listening sessions with
Tribal stakeholders in summer 2022,
and took feedback received during those
listening session into account when
developing the proposed rule. USDA
held a Tribal consultation on May 23,
2023, during which Tribal leaders
provided feedback and input on the
proposed rule. Tribal leaders supported
improving children’s health and
nutrition, for example, by reducing
sugars in children’s diets. Regarding the
term ‘‘traditional foods,’’ Tribal leaders
supported use of the term as detailed in
Section 8: Traditional Indigenous Foods
and confirmed that it is a recognizable
term. Tribal leaders maintained that
traditional Indigenous foods can be
more expensive to procure compared to
other foods and requested additional
reimbursement to provide traditional
Indigenous foods in school meals.
Although USDA does not have the
authority to provide additional
reimbursement, USDA appreciates
Tribal leaders sharing this concern. If a
Tribe requests additional consultation
in the future, USDA’s Office of Tribal
Relations will ensure meaningful
consultation is provided.
Paperwork Reduction Act
The Paperwork Reduction Act of 1995
(PRA) (44 U.S.C. Chap. 35; 5 CFR 1320)
requires that the Office of Management
and Budget (OMB) approve all
collection of information requirements
by a Federal agency before they can be
implemented. Respondents are not
required to respond to any collection of
information unless it displays a current,
valid OMB Control Number. This
rulemaking finalizes long-term school
nutrition requirements based on the
goals of the Dietary Guidelines for
Americans, 2020–2025, robust
stakeholder input, and lessons learned
from prior rulemakings. Notably, this
rulemaking gradually phases in added
sugars limits for the school lunch and
breakfast programs and in the Child and
Adult Care Food Program (CACFP),
updates total sugars limits for breakfast
cereals and yogurt to added sugars
limits. As a reflection of feedback from
stakeholders, this rule implements a
single sodium reduction in the school
lunch and breakfast programs and
commits to studying the potential
associations between sodium reduction
and student participation. This
rulemaking addresses a variety of other
school meal requirements, including
establishing long-term milk and whole
grain requirements. Finally, this
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rulemaking strengthens Buy American
requirements. While this rulemaking
takes effect school year (SY) 2024–2025,
the Department is gradually phasing in
required changes over time.
In accordance with the PRA, this rule
contains new information collection
requirements, which are subject to
review and approval by OMB. These
new requirements will be added into the
following information collections: OMB
Control Number 0584–0006 7 CFR part
210 National School Lunch Program
(expiration date September 30, 2026),
OMB Control Number 0584–0012 7 CFR
part 220 (expiration date August 31,
2025), OMB Control Number 0584–0055
Child and Adult Care Food Program
(expiration date August 31, 2025), and
OMB Control Number 0584–0280 7 CFR
part 225, Summer Food Service Program
(expiration date September 30, 2025).
This rulemaking finalizes new reporting
and recordkeeping requirements for
State agencies and school food
authorities administering the National
School Lunch Program (NSLP) and
School Breakfast Program (SBP). This
rulemaking also finalizes one
recordkeeping requirement on Summer
Food Service Program (SFSP) and
CACFP operators. The final rule
contains existing information
collections in the form of recordkeeping
requirements that have been approved
by OMB under OMB Control Number
0584–0006 7 CFR part 210 National
School Lunch Program (expiration date
September 30, 2026) and OMB Control
Number 0584–0012 7 CFR part 220
School Breakfast Program (expiration
date August 31, 2025); however, the
provisions in this rule do not impact
these requirements or their associated
burden. Therefore, they are not included
in the discussion concerning the burden
impact resulting from the provisions in
this rulemaking. This rulemaking does
not impact existing and approved
information collection requirements.
USDA is submitting for public
comment the information collection
burden that will result from adoption of
the new recordkeeping and reporting
requirements finalized in the
rulemaking. The establishment of the
information requirements in the rule is
contingent upon OMB approval. When
the rulemaking information collection
request is approved, the Department
will publish a separate notice in the
Federal Register announcing OMB’s
approval.
Comments on the information
collection requirements addressed in
the rule may be submitted. Comments
must be received by June 24, 2024. Send
comments to Office of Information and
Regulatory Affairs, OMB, Attention:
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Desk Officer for FNS, Washington, DC
20403, Fax: 202–395–7285, or email to
oira_submission@omb.eop.gov. Please
also send a copy of your comments to
School Meals Policy Division, Food and
Nutrition Service, 1320 Braddock Place,
Alexandria, VA 22314. For further
information, please contact Marlana
Bates at marlana.bates@usda.gov.
Comments are invited on: (a) Whether
the proposed collection of information
is necessary for the proper performance
of the functions of the agency, including
whether the information shall have
practical utility; (b) the accuracy of the
agency’s estimate of the burden of the
proposed collection of information,
including the validity of the
methodology and assumptions used; (c)
ways to enhance the quality, utility, and
clarity of the information to be
collected; and (d) ways to minimize the
burden of the collection of information
on those who are to respond, including
use of appropriate automated,
electronic, mechanical, or other
technological collection techniques or
other forms of information technology.
All responses to this notice will be
summarized and included in the request
for OMB approval. All comments will
also become a matter of public record.
USDA published a proposed rule on
February 7, 2023 (88 FR 8050), and
received comments from the public
concerning the reporting and
recordkeeping requirements and their
associated burden. Consequently, USDA
has revised certain provisions in the
rule, and therefore has updated the
reporting and recordkeeping
information requirement burden
estimates from the estimates reported in
the proposed rule. In response to public
input, USDA made changes to the Buy
American provision which impacts the
information collection. The rule will
now gradually phase in the proposed
non-domestic food cap of 5 percent.
USDA will introduce a 10 percent cap
in SY 2025–2026, an 8 percent cap in
SY 2028–2029, and a 5 percent cap in
SY 2031–2032. Additionally, USDA is
including in this rule that when a
school food authority purchases a food
item found on the Federal Acquisition
Regulations (FAR) 25.104 Nonavailable
articles list, no further documentation is
required. Food products from the FAR
Nonavailable articles list must be
included in the non-domestic food cap
calculation. Despite the changes to the
Buy American provision, the hourly
burden calculations are unlikely to
decrease substantially from a quarter of
an hour per record. For the menu
planning options for substituting
vegetables for grains in Tribal
communities, the estimated burden has
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been extended by a quarter of an hour
per record for SFSP and CACFP
operators in response to public
comment that the estimate in the
proposed rule was too low. USDA
originally estimated that it would take
an hour to complete this requirement.
Based on the public comment and
further evaluation of the requirement
and comparison to other similar menu
planning requirements, USDA now
estimates it will take an additional 15
minutes to complete this requirement.
The revised time estimate for this
requirement is now one hour and 15
minutes.
The estimated numbers of responses,
and burden hours for the information
collection requirements that were
included in the February 7, 2023,
proposed rule are being revised in the
final rule. In addition, the baseline for
one of the affected collections (OMB
Control Number 0584–0006) has been
revised since the issuance of the
proposed rule. These revisions are based
on updating previous information
collections rather than creating a new
collection as was in the proposed rule.
Between the publication of the proposed
rule and the final rule, the following ICR
expired: OMB Control Number 0584–
0006. Because this collection has since
been renewed and updated with an
expiration date of September 30, 2026,
the decision was made to switch to
revisions of previous collections rather
than a new information collection. The
number of respondents now align with
those in the four previous information
collections. Burden was also added to
account for the changes in the NSLP and
SBP, instead of a combined estimate for
both programs for the three applicable
provisions. Additionally, burden was
added to account for menu
development, which had not been
considered in previous information
collections. As a result, the number of
responses and burden hours for this rule
have increased over those estimated for
the proposed rule.
USDA now estimates that this rule
will have an estimated 19,705
respondents, 763,892 responses, and
635,196 burden hours. This is the same
number of respondents, an increase of
549,934 responses, and an increase of
204,897 burden hours in comparison to
the estimations included in the
proposed rule. These estimates are
totaled from four information
collections, each of which is detailed in
sections below. First, an overview of
each part of the rule that adds burden
is below, including professional
standards exception, Buy American,
substituting vegetables for grains in
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Tribal communities, menu planning
options, and annualized costs.
Professional Standards Exception
This rulemaking codifies the
proposed hiring exception to allow State
agencies to approve the hiring of an
individual to serve as a school nutrition
program director in medium (2,500 to
9,999 students) or large (10,000 or more
students) local educational agencies, for
individuals who have 10 years or more
of school nutrition program experience
but who do not hold a bachelor’s or
associate’s degree.
Buy American
The National School Lunch Act
(NSLA, 42 U.S.C. 1760(n)) and program
regulations at 7 CFR 210.21(d)(2)(i) and
220.16(d)(2)(i), require school food
authorities to purchase domestic
commodities or products ‘‘to the
maximum extent practicable.’’ This
provision, known as the Buy American
provision, was initially implemented in
1998 and supports the mission of the
child nutrition programs, which is to
serve children nutritious meals and
support American agriculture. There are
two limited exceptions to the Buy
American provision that school food
authorities may implement when
purchasing domestic foods is not
feasible. The exceptions apply when a
product is not produced or
manufactured in the U.S. in sufficient
and reasonably available quantities of a
satisfactory quality, or when
competitive bids reveal the costs of a
U.S. product are significantly higher
than the non-domestic product.
The final rule maintains the current
two limited exceptions to the Buy
American provision and clarifies in
regulation that it is the responsibility of
the school food authority to determine
whether an exception applies. In
addition, in response to public
comment, USDA is including in this
rule that when a school food authority
purchases a food item found on the
Federal Acquisition Regulations (FAR)
25.104 Nonavailable articles list, no
further documentation is required. The
Nonavailable articles list is a list of
items that have been deemed not
available in the U.S. and excepted from
the Buy American statute.173 Food
products from the FAR Nonavailable
articles list must be included in the nondomestic food cap calculation. Also, in
173 41 U.S.C chapter 83 is the Buy American
statute that requires public agencies to procure
articles, materials, and supplies that were mined,
produced, or manufactured in the United States,
substantially all from domestic components.
Available at: https://www.acquisition.gov/far/part25.
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32049
response to public comments that
suggested a 5 percent cap is too
restrictive under current procurement
conditions, USDA will use a phased
approach to gradually reach the
proposed 5 percent of total costs per
school year cap on non-domestic food
purchases.
The phased approach will be as
follows:
• Beginning in SY 2025–2026, the
non-domestic food cost cap will be 10
percent.
• Beginning in SY 2028–2029, the
non-domestic food cost cap will be 8
percent.
• Beginning in SY 2031–2032, the
non-domestic food cost cap will be 5
percent.
For oversight purposes, the final rule
codifies a recordkeeping requirement for
school food authorities to maintain
documentation to demonstrate that their
non-domestic food purchases do not
exceed the above specified annual
threshold by year. This recordkeeping
requirement would codify a requirement
to maintain documentation for use of
exceptions to the Buy American
provision. While school food authorities
may already maintain documentation to
demonstrate compliance with the Buy
American provision in accordance with
guidance made available by USDA, the
need to maintain this documentation is
currently not discussed in the
regulations governing the Buy American
provisions. Therefore, the rule element
to codify recordkeeping requirements to
document compliance with the Buy
American provision, including the use
of exceptions to the provision, and their
associated burden are addressed as a
revision in the information collection
request for the rule.
Lastly, the rule requires school food
authorities to include the Buy American
provision in procurement procedures,
solicitations, and contracts for foods and
food products procured using informal
and formal procurement methods, and
in awarded contracts. These
recordkeeping requirements are being
added to the information collection
associated with the rule.
Substituting Vegetables for Grains in
Tribal Communities
The rulemaking codifies the proposal
to allow school food authorities that are
tribally operated, operated by the
Bureau of Indian Education, and that
serve primarily American Indian or
Alaska Native children to serve
vegetables to meet the grains
requirement in NSLP and SBP. In
addition, the rulemaking codifies the
proposal to extend this menu planning
option to SFSP and CACFP sponsors,
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institutions, and facilities that serve
primarily American Indian or Alaska
Native participants. Additionally, this
rule allows all schools, sponsors,
institutions, and facilities in Guam and
Hawaii to serve vegetables to meet the
grains or breads requirement. The menu
planning option aims to improve the
child nutrition programs for American
Indian and Alaska Native children and
build on USDA’s commitment to
support traditional foodways.
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Menu Planning Options
This rulemaking makes a variety of
changes to school meal nutrition
requirements, including to implement
quantitative limits for the following
leading sources of added sugars in
school meals: breakfast cereals, yogurt,
and flavored milk. The rulemaking will
also implement a dietary specification
limiting added sugars to less than 10
percent of calories per week in the
school lunch and breakfast programs.
USDA acknowledges these changes will
be reflected in schools’ production and
menu records that show how meals
offered at school contribute to the
required food components and food
quantities for each age/grade group
every day.
Longstanding recordkeeping
requirements established at 7 CFR
210.10(a)(3) and 7 CFR 220.8(a)(3)
require schools to maintain menu
records for the meals produced and
served in schools participating in the
NSLP and SBP, but additional burden
must be addressed for developing
menus. This includes developing menus
that meet existing and updated USDA
menu specifications, including but not
limited to, whole grains, milk, sodium,
and added sugars. USDA expects there
to be additional burden in this
information collection from the
requirements to limit added sugars in
the NSLP and SBP or any other changes
to school meal nutrition requirements
included in this rulemaking, affecting
OMB Control Number 0584–0006 7 CFR
part 210 National School Lunch
Program and OMB Control Number
0584–0012 7 CFR part 220 School
Breakfast Program.
Annualized Costs
As a result of the implementation of
the provisions in this rule, there will be
some start-up and maintenance costs. In
public comments, these included costs
such as extra supplies or funding to
implement the updated meal patterns,
as well as updating costs to update
websites, materials, menus, and recipes.
Another potential cost for school food
authorities detailed in public comments
includes updating meal planning
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databases. Public comments also
pointed to start-up costs for
implementing the Buy American
provision over time, mainly due to
updated forms and labor associated with
updating ordering procedures/
documentation.
USDA estimates a cost of $50,000 per
State agency to account for maintenance
and start-up costs associated with the
rule, and an additional $1000 per school
food authority to account for
maintenance of databases, menu
planning, materials, and other rule
related costs for the NSLP, under OMB
Control Number 0584–0006. This would
result in a total of $2,800,000 in costs
for State agencies and $19,019,000 in
costs for school food authorities, or
$21,819,000 in total costs as a result of
this final rule. This $21,819,000 would
only be added to OMB Control Number
0584–0006 since these State agencies
and school food authorities operate both
the NSLP and SBP.
For CACFP OMB Control Number
0584–0055, an additional $305,000
should be added to account for the startup costs associated with menu changes
for CACFP operators. For SFSP OMB
Control Number 0584–0280, an
additional $10,000 should be added to
account for the start-up costs associated
with menu changes for SFSP operators.
These totals result from an additional
$500 per operator affected by the menu
changes.
Information Collections
Title: 7 CFR part 210 National School
Lunch Program
Form Number: None
OMB Control Number: 0584–0006
Expiration Date: September 30, 2026
Type of Request: Revision of a
currently approved collection
Abstract: This is a revision of a
currently approved information
collection to add new reporting and
recordkeeping information requirements
that are discussed in the rule, into the
collection. Below is a summary of the
changes in the final rule and the
accompanying reporting and
recordkeeping requirements that will
impact the burden that program
requirements have on State governments
and school food authorities. USDA has
updated the number of responses and
burden hours associated with the
collection of information requirements
included in the rule since publication of
the proposed rule, Child Nutrition
Programs: Revisions to Meal Patterns
Consistent with the 2020 Dietary
Guidelines for Americans, published on
February 7, 2023. Revisions are based
on adding in burden for menu
development including the
PO 00000
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Fmt 4701
Sfmt 4700
development resulting from the
provisions in the new rule.
Reporting
The changes in this rule will add new
reporting requirements related to
professional standards to the existing
requirements that are currently
approved under OMB Control Number
0584–0006.
State Agencies
The hiring exception for professional
standards introduces a reporting
requirement at 7 CFR 210.30(b)(1)(iv) for
State agencies, who would be required
to review and respond to each request
submitted on behalf of school food
authorities. USDA estimates 56 State
agencies would review and either
approve or deny each approximately 17
requests received per each State agency,
for a total of 951 responses, and that it
takes approximately 30 minutes (.5
hours) to review and respond to each
request, for a total of 476 hours. USDA
estimates that this new requirement will
add 476 burden hours and 951
responses to the currently approved
burden for OMB Control Number 0584–
0006.
School Food Authorities
The hiring exception for professional
standards adds a new requirement for
the school food authorities at 7 CFR
210.30(b)(1)(iv). USDA estimates 951
school food authorities would submit 1
request to their respective State agencies
to hire an individual to serve as the
school nutrition program director in
medium or large local educational
agencies each year, and that each
respondent will take approximately 30
minutes (.5 hours) to develop and
submit this request for a total of 476
hours. USDA estimates that this new
requirement will add an estimated 476
burden hours and 951 responses into
the currently approved burden for OMB
Control Number 0584–0006.
Recordkeeping
The changes in this rule will add new
recordkeeping requirements related to
professional standards, Buy American,
substituting vegetables for grains in
Tribal communities, and menu planning
options to the existing requirements that
are currently approved under OMB
Control Number 0584–0006.
State Agencies
In addition to the reporting
requirements associated with the hiring
exception to allow State agencies to
approve the hiring of individuals who
do not meet the educational criteria but
have 10 years or more of school
E:\FR\FM\25APR3.SGM
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Federal Register / Vol. 89, No. 81 / Thursday, April 25, 2024 / Rules and Regulations
nutrition program experience to serve as
the school nutrition program director,
State agencies would be required to
maintain the requests that the school
food authorities developed and
submitted to them for review and
approval, as stated in 7 CFR
210.30(b)(1)(iv). The new requirement
would impact an estimated 56 State
agencies, who will be reviewing an
estimated 17 requests, for 951
responses. USDA estimates it takes the
State agencies approximately 15
minutes (.25 hours) to maintain each
record annually, for a total of 238 hours.
USDA estimates that this new
requirement will add 238 hours and 951
responses to the currently approved
burden for OMB Control Number 0584–
0006.
School Food Authorities
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The new requirement at 7 CFR
210.30(b)(1)(iv) also requires school
food authorities to maintain
documentation of requests to hire
individuals under the Professional
Standards Exception provision. This
requirement adds an estimated 238
burden hours and 951 responses into
the collection. USDA estimates that the
same burden estimates will be added to
the existing burden approved for OMB
Control Number 0584–0006 once these
requirements are merged into that
collection.
USDA estimates the recordkeeping
requirement at 7 CFR 210.21(d)(5) for
school food authorities to maintain
documentation to demonstrate that their
non-domestic food purchases do not
exceed the proposed specified annual
threshold will impact approximately
19,019 school food authorities. USDA
estimates these 19,019 respondents will
develop and maintain 10 records each
year, for a total of 190,190 responses,
and that it takes approximately 15
minutes (.25 hours) each month to
complete the requirement for each
record. This requirement adds a total of
47,548 annual burden hours and
190,190 responses into the information
collection request for OMB Control
Number 0584–0006. In addition, USDA
estimates the final recordkeeping
requirement at 7 CFR 210.21(d)(3) to
include the Buy American provision in
procurement procedures, solicitations,
VerDate Sep<11>2014
20:11 Apr 24, 2024
Jkt 262001
and contracts would impact
approximately 19,019 school food
authorities. USDA estimates these
19,019 respondents will revise their
procurement procedures, solicitations,
and contracts and maintain these
records, and estimates they would
spend approximately 10 hours each year
meeting this requirement. This
requirement would add a total of
190,190 annual burden hours and
19,019 responses into the information
collection request for OMB Control
Number 0584–0006.
Alongside the final provision is a
requirement that the school food
authorities using this option maintain
documentation that they are tribally
operated, are operated by the Bureau of
Indian Education, or serve primarily
American Indian or Alaska Native
students. As described in the proposed
rule, school food authorities and schools
‘‘serving primarily American Indian or
Alaska Native children’’ include school
food authorities and schools where
American Indian or Alaska Native
children represent the largest
demographic group of enrolled children.
This documentation would be
maintained for program reviews. This
recordkeeping requirement at 7 CFR
210.10(c)(3) establishes a collection of
information for school food authorities
that participate in the school meals
programs and elect to implement the
operational flexibility to serve
vegetables in place of grains in school
meals. USDA estimates 317 school food
authorities operating the NSLP would
maintain documentation each year to
demonstrate schools using the menu
planning option meet the criteria, and
that it would take approximately 1 hour
to collect and maintain such
documentation annually. This
requirement for school food authorities
would add an estimated 317 annual
burden hours and 317 responses into
the currently approved burden for OMB
Control Number 0584–0006.
Another requirement in the rule
includes menu planning options, in
which school food authorities develop
menu records (beyond regular menu
maintenance) that meet updated and
new USDA specifications from the rule,
under 7 CFR 210.10(a)(3). This also
includes following all previous rule
PO 00000
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32051
menu specifications. USDA estimates
19,019 school food authorities would
develop menu records in 30 minutes
(0.5 hours), 10 times per year. This
requirement would add an estimated
95,095 annual burden hours and
190,190 responses into the currently
approved burden for OMB Control
Number 0584–0006.
Summary
USDA estimates that the burden for
the new reporting and recordkeeping
information requirements that are
impacted by this final rule will have
19,075 respondents, 403,520 responses,
and 334,576 burden hours. Once the
information collection requests related
to this rule is approved by OMB, USDA
expects that the total information
collection burden for OMB Control
Number 0584–0006 7 CFR part 210
National School Lunch Program will be
115,935 respondents, 48,035,516
responses, and 10,143,277 burden
hours. This is an estimated increase of
403,520 responses and 334,576 hours,
with no increase in respondents, from
the currently approved burden for this
collection.
Respondents (Affected Public): State
Agencies (State governments), and
School Food Authorities (local
governments).
Reporting
Estimated Number of Respondents:
1,007.
Estimated Number of Responses per
Respondent: 1.89.
Estimated Total Annual Responses:
1,902.
Estimated Time per Response: 30
minutes (.50 hours).
Estimate Total Annual Burden on
Respondents: 951 hours.
Recordkeeping
Estimated Number of Respondents:
19,075.
Estimated Number of Responses per
Respondent: 21.05.
Estimated Total Annual Responses:
401,618.
Estimated Time per Response:
Approximately 50 minutes (0.83 hours).
Estimate Total Annual Burden on
Respondents: 333,625.
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Description of
Activities
lotter on DSK11XQN23PROD with RULES3
State agencies
review and
approve/deny each
request to hire a
school nutrition
program director in
a medium or large
local educational
agency who does
not meet
professional
standards
educational criteria
Total State Agency
Reporting
School food
authorities develop
and submit requests
to hire a school
nutrition program
director in a
medium or large
local educational
agency who does
not meet
professional
standards
educational criteria
Total School Food
VerDate Sep<11>2014
Regulation
Citation
Estimated#
of
Respondents
Frequency
of
Response
Total
Annual
Responses
Average
Burden
Hours
per
Response
210.30(b)(1
)(iv)
56
17
951
.5
56
210.30(b)(1
)(iv)
20:11 Apr 24, 2024
Jkt 262001
Estimated
Total
Annual
Burden
Hours Due
to Final
Rulemakin
Hours
Currently
Approved
Estimated
Total
Difference
476
0
476
476
0
476
476
0
476
951
951
1
951
.5
951
951
476
0
476
1,007
1,902
951
0
951
PO 00000
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ER25AP24.087</GPH>
Reporting for 0MB Control Number 0584-0006
Federal Register / Vol. 89, No. 81 / Thursday, April 25, 2024 / Rules and Regulations
32053
Description of
Activities
State agencies
maintain school
food authorities
requests to hire
individuals in
medium or large
local educational
agencies who do not
meet professional
standards
educational criteria
Regulation
Citation
Estimated#
of
Respondents
Frequenc
y of
Response
Total
Annual
Responses
Average
Burden
Hours
per
Respons
e
210.30(b)(l
)(iv)
56
17
951
0
Total State Agency
Recordkeeping
School food
authorities maintain
documentation of
requests to hire
individuals in
medium or large
local educational
agencies who do not
meet professional
standards
educational criteria
School food
authorities maintain
documentation
demonstrating
compliance with the
Buy American
provision
lotter on DSK11XQN23PROD with RULES3
School food
authorities include
language requiring
Buy American in all
procurement
procedures,
solicitations, and
contracts and
maintain such
documentation
School food
authorities maintain
records to
demonstrate that
schools are tribally
o erated, are
VerDate Sep<11>2014
56
210.30(b)(l
)(iv)
210.21(d)(5
)
210.21(d)(3
)
210.10(c)(3
20:11 Apr 24, 2024
)
Jkt 262001
Estimated
Total
Annual
Burden
Hours Due
to Final
Rulemakin
Hours
Currently
Approved
Estimated
Total
Difference
238
0
238
238
0
238
951
1
951
0
238
0
238
19,019
10
190,190
0
47,548
0
47,548
19,019
1
19,019
10
190,190
0
190,190
317
1
317
1
317
0
317
PO 00000
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E:\FR\FM\25APR3.SGM
25APR3
ER25AP24.088</GPH>
Recordkee in for 0MB Control Number 0584-0006
32054
Federal Register / Vol. 89, No. 81 / Thursday, April 25, 2024 / Rules and Regulations
operated by the
Bureau oflndian
Education, or serve
primarily American
Indian or Alaska
Native students
School food
authorities develop
menu records
(beyond regular
menu maintenance)
that meet updated
and new USDA
specifications from
the rule
Total School Food
Authority
Recordkee in
Total
Recordkeeping
Burden
210.10(a)(3
)
10
19,019
190,190
95,095
0
95,095
19,019
333,387
0
333,387
19,075
333,625
0
333,625
SUMMARY OF BURDEN: RECORDKEEPING AND REPORTING
TOTAL NO. RESPONDENTS
115,935
AVERAGE NO. RESPONSES PER RESPONDENT
414.33
TOTAL ANNUAL RESPONSES
48,035,516
AVERAGE HOURS PER RESPONSE
0.21
TOTAL BURDEN HOURS
Title: 7 CFR part 220, School
Breakfast Program.
Form Number: None.
OMB Control Number: 0584–0012.
Expiration Date: August 31, 2025.
Type of Request: Revision of a
currently approved collection.
Abstract: This is a revision of a
currently approved information
collection, that adds new recordkeeping
information requirements that are
discussed in the final rule into the
collection. Below is a summary of the
changes in the final rule and the
accompanying recordkeeping
requirements that will impact the
burden that program requirements have
on school food authorities. The burden
was separated out for the SBP from the
NSLP, and burden hours were added to
account for menu development, both of
which added additional recordkeeping
burden hours.
Recordkeeping
The changes in this rule will add new
recordkeeping requirements related to
Buy American, substituting vegetables
for grains in Tribal communities, and
VerDate Sep<11>2014
20:11 Apr 24, 2024
Jkt 262001
menu planning options to the existing
requirements that are currently
approved under OMB Control Number
0584–0012.
School Food Authorities
USDA estimates the requirement at 7
CFR 220.16(d)(5) for school food
authorities to maintain documentation
to demonstrate that their non-domestic
food purchases do not exceed the
proposed specified annual threshold
will impact approximately 17,117
school food authorities. USDA estimates
these 17,117 respondents will develop
and maintain 10 records each year, for
a total of 171,170 responses, and that it
takes approximately 15 minutes (.25
hours) each month to complete the
requirement for each record. This
requirement adds a total of 42,793
annual burden hours and 171,170
responses into the currently approved
burden for OMB Control Number 0584–
0012.
USDA estimates the requirement at 7
CFR 220.16(d)(3) to include the Buy
American provision in procurement
procedures, solicitations, and contracts
PO 00000
Frm 00094
Fmt 4701
Sfmt 4700
would impact approximately 17,117
school food authorities. USDA estimates
these 17,117 respondents will revise
their procurement procedures,
solicitations, and contracts and
maintain these records, and estimates
they would spend approximately 10
hours each year meeting this
requirement. This requirement would
add a total of 171,170 annual burden
hours and 17,117 responses into the
currently approved burden for OMB
Control Number 0584–0012.
This requirement at 7 CFR 220.8(c)(3)
establishes a collection of information
for school food authorities that
participate in the school meals programs
and elect to implement the operational
flexibility to serve vegetables in place of
grains in school meals. USDA estimates
285 school food authorities operating
the SBP would maintain documentation
each year to demonstrate schools using
the menu planning option meet the
criteria, and that it would take
approximately 1 hour to collect and
maintain such documentation annually.
USDA estimates that this new
requirement for school food authorities
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10,143,277
Federal Register / Vol. 89, No. 81 / Thursday, April 25, 2024 / Rules and Regulations
lotter on DSK11XQN23PROD with RULES3
would add an estimated 285 annual
burden hours and 285 responses into
the currently approved burden for OMB
Control Number 0584–0012.
Another requirement in the rule,
includes menu planning options, in
which school food authorities develop
menu records (beyond regular menu
maintenance) that meet updated and
new USDA specifications from the rule,
under 7 CFR 220.8(a)(3). This also
includes following all previous rule
menu specifications. USDA estimates
17,117 school food authorities would
develop breakfast menu records in 30
minutes (0.5 hours), 10 times per year.
This requirement would add an
estimated 85,585 annual burden hours
and 171,170 responses into the
VerDate Sep<11>2014
20:11 Apr 24, 2024
Jkt 262001
currently approved burden for OMB
Control Number 0584–0012.
Summary
USDA estimates that the burden for
the new recordkeeping information
requirements that are impacted by this
final rule will have 17,117 respondents,
359,742 responses, and 299,833 burden
hours. Once the information collection
requests related to this rule is approved
by OMB, USDA expects that the total
information collection burden for OMB
Control Number 0584–0012 7 CFR part
220 School Breakfast Program will be
105,700 respondents, 33,462,278
responses, and 4,036,508 burden hours.
This is an estimated increase of 359,742
responses and 299,833 hours, with no
PO 00000
Frm 00095
Fmt 4701
Sfmt 4700
32055
increase in respondents, from the
currently approved burden for this
collection.
Respondents (Affected Public): School
Food Authorities (local governments).
Recordkeeping
Estimated Number of Respondents:
17,117.
Estimated Number of Responses per
Respondent: 21.02.
Estimated Total Annual Responses:
359,742.
Estimated Time per Response:
Approximately 50 minutes (0.83 hours).
Estimate Total Annual Burden on
Respondents: 299,833.
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Federal Register / Vol. 89, No. 81 / Thursday, April 25, 2024 / Rules and Regulations
Description of
Activities
School food
authorities
maintain
documentation
demonstrating
compliance with
the Buy American
provision
lotter on DSK11XQN23PROD with RULES3
School food
authorities include
language requiring
Buy American in
all procurement
procedures,
solicitations, and
contracts and
maintain such
documentation
School food
authorities
maintain records to
demonstrate that
schools are tribally
operated, are
operated by the
Bureau of Indian
Education, or serve
primarily
American Indian or
Alaska Native
students
School food
authorities develop
menu records
(beyond regular
menu maintenance)
that meet updated
and new USDA
specifications from
the rule
Total School Food
Authority
Recordkee in
Total
Recordkee in
VerDate Sep<11>2014
Regulation
Citation
Recordkee in for 0MB Control Number 0584-0012
Estimated
Averag
Total
e
Annual
Estimated# Frequen
Total
Burden
of
cyof
Annual
Burden
Hours
Hours Due
Respondent Respons Response
per
s
e
s
to Final
Respon
Rulemakin
se
Hours
Currently
Approved
Estimated
Total
Difference
220 .16(d)( 5
)
17,117
10
171,170
0
42,793
0
42,793
220 .16(d)(3
)
17,117
1
17,117
10
171,170
0
171,170
220.8(c)(3)
285
1
285
1
285
0
285
220.8(a)(3)
17,117
10
171,170
1
85,585
0
85,585
17,117
299,833
0
299,833
17,117
299,833
0
299,833
20:11 Apr 24, 2024
Jkt 262001
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Fmt 4701
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25APR3
ER25AP24.091</GPH>
32056
Federal Register / Vol. 89, No. 81 / Thursday, April 25, 2024 / Rules and Regulations
32057
SUMMARY OF BURDEN: RECORDKEEPING AND REPORTING
105,700
TOTAL NO. RESPONDENTS
AVERAGE NO. RESPONSES PER RESPONDENT
316.5778
TOTAL ANNUAL RESPONSES
33,462,278
AVERAGE HOURS PER RESPONSE
0.1206
TOTAL BURDEN HOURS
4,036,508
Title: Child and Adult Care Food
Program.
Form Number: None.
OMB Control Number: 0584–0055.
Expiration Date: August 31, 2025.
Type of Request: Revision of a
currently approved collection.
Abstract: This is a revision of a
currently approved information
collection, that adds new recordkeeping
information requirements that are
discussed in the final rule into the
collection. Below is a summary of the
changes in the final rule and the
accompanying recordkeeping
requirements that will impact the
burden that program requirements have
on program operators in the CACFP.
Burden was split up by institutions and
facilities for the menu planning options,
which is an update from the proposed
rule, in which estimates were combined.
In response to public comment, time to
maintain documentation was added to
estimates from the proposed rule.
Recordkeeping
The changes in this rule will add new
recordkeeping requirements related to
substituting vegetables for grains in
Tribal communities to the existing
requirements that are currently
approved under OMB Control Number
0584–0055.
lotter on DSK11XQN23PROD with RULES3
CACFP—Businesses
The provision for substituting grains
for vegetables in Tribal communities
adds a new requirement for CACFP
businesses (facilities and institutions)
serving primarily American Indian or
VerDate Sep<11>2014
20:11 Apr 24, 2024
Jkt 262001
Alaska Native participants and electing
to implement this menu planning
option. CACFP operators electing to
serve vegetables to meet the grains
requirement under this provision are
also required to maintain
documentation demonstrating that the
site qualifies for the menu planning
option.
Institutions
USDA estimates the recordkeeping
requirement at 7 CFR 226.20(f) would
require approximately 70 institutions to
collect and maintain documentation
each year to demonstrate that the site
serves primarily American Indian or
Alaska Native participants, and that it
takes approximately 1.25 hours to
collect and maintain such
documentation. USDA estimates this
collection of information would add an
estimated 88 annual burden hours and
70 responses for CACFP operators and
the information collection request
associated with this provision under
OMB Control Number 0584–0055.
Facilities
USDA estimates the recordkeeping
requirement at 7 CFR 226.20(f) would
require approximately 540 facilities to
collect and maintain documentation
each year to demonstrate that the site
serves primarily American Indian or
Alaska Native participants, and that it
takes approximately 1.25 hours to
collect and maintain such
documentation. USDA estimates this
collection of information would add an
estimated 675 annual burden hours and
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Fmt 4701
Sfmt 4700
540 responses for CACFP operators and
the information collection request
associated with this provision under
OMB Control Number 0584–0055.
Summary
USDA estimates that the burden
related to the new recordkeeping
information requirements that are
discussed in this final rule will have
610 respondents, 610 responses, and
763 burden hours. Once the information
collection requests related to this rule is
approved by OMB, USDA expects that
the total information collection burden
for OMB Control Number 0584–0055
Child and Adult Care Food Program will
be 3,794,949 respondents, 16,213,703
responses, and 4,213,973 burden hours.
This is an estimated increase of 610
responses and 763 burden hours from
the currently approved burden for this
collection, with no change in the
number of respondents.
Respondents (Affected Public): Child
and Adult Care Food Program
(businesses, which include institutions
and facilities).
Recordkeeping
Estimated Number of Respondents:
610.
Estimated Number of Responses per
Respondent: 1.
Estimated Total Annual Responses:
610.
Estimated Time per Response:
Approximately 75 minutes (1.25 hours).
Estimate Total Annual Burden on
Respondents: 763.
BILLING CODE 3410–30–P
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Description of
Activities
Child and Adult
Care Food
Program Operators
(institutions)
maintain
documentation
demonstrating that
service sites
qualify for the
menu planning
option to serve
vegetables to meet
the grains
requirement by
serving primarily
American Indian
and Alaska Native
children
Child and Adult
Care Food
Program Operators
(facilities)
maintain
documentation
demonstrating that
service sites
qualify for the
menu planning
option to serve
vegetables to meet
the grains
requirement by
serving primarily
American Indian
and Alaska Native
children
Total Child and
Adult Care Food
Program
Operators
(facility and
institution level)
Recordkee in
Total
Recordkeeping
0MB Control
Number 05840055
VerDate Sep<11>2014
Regulation
Citation
Recordkee in for 0MB Control Number 0584-0055
Estimated
Averag
Total
e
Estimated# Frequen
Total
Annual
Burden
Burden
of
cyof
Annual
Hours
Respondent Respons Response
Hours Due
per
to Final
s
e
s
Respon
Rulemakin
se
Hours
Currently
Approved
Estimated
Total
Difference
226.20(t)
70
1
70
1
88
0
88
226.20(t)
540
I
540
I
675
0
675
610
763
0
763
610
763
0
763
20:11 Apr 24, 2024
Jkt 262001
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Fmt 4701
Sfmt 4725
E:\FR\FM\25APR3.SGM
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32058
Federal Register / Vol. 89, No. 81 / Thursday, April 25, 2024 / Rules and Regulations
32059
SUMMARY OF BURDEN: RECORDKEEPING AND REPORTING
3,794,949
TOTAL NO. RESPONDENTS
AVERAGE NO. RESPONSES PER RESPONDENT
4.272
TOTAL ANNUAL RESPONSES
16,213,703
AVERAGE HOURS PER RESPONSE
0.260
TOTAL BURDEN HOURS
4,213,973
Title: 7 CFR part 225, Summer Food
Service Program.
Form Number: None.
OMB Control Number: 0584–0280.
Expiration Date: September 30, 2025.
Type of Request: Revision of a
currently approved collection.
Abstract: This is a revision of a
currently approved information
collection that adds a recordkeeping
information requirement that is
discussed in the final rule into the
collection. Below is a summary of the
changes in the final rule and the
accompanying recordkeeping
requirement that will impact the burden
that program requirements have on the
program operators in the SFSP.
Substituting vegetables for grains in
Tribal communities is the only
provision in the final rule adding
burden to this collection.
Recordkeeping
lotter on DSK11XQN23PROD with RULES3
The changes in this rule will add a
new recordkeeping requirement related
to substituting vegetables for grains in
Tribal communities to the existing
requirements that are currently
approved under OMB Control Number
0584–0280.
VerDate Sep<11>2014
20:11 Apr 24, 2024
Jkt 262001
Businesses (Operators)
The provision to substitute grains for
vegetable establishes a recordkeeping
requirement for SFSP operators serving
primarily American Indian or Alaska
Native participants and electing to
implement this menu planning option.
SFSP operators electing to serve
vegetables to meet the grains
requirement under this provision are
also required to maintain
documentation demonstrating that the
site qualifies for the menu planning
option.
USDA estimates the recordkeeping
requirement under 7 CFR 225.16(f)(3)
would require approximately 20 SFSP
operators to collect and maintain
documentation each year to demonstrate
that the site serves primarily American
Indian or Alaska Native participants,
and that it takes approximately 1.25
hours to collect and maintain such
documentation, for 25 hours. USDA
estimates that this new requirement
would add 25 annual burden hours and
20 responses into the burden for OMB
Control Number 0584–0280.
Summary
As a result of the changes outlined in
this rulemaking, USDA estimates that
the burden for rule-related requirements
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for OMB Control Number 0584–0280
will be 20 respondents, 20 responses,
and 25 burden hours. Once the
information collection requests related
to this rule is approved by OMB, USDA
expects that the total information
collection burden for OMB Control
Number 0584–0280 Summer Food
Service Program will be 63,942
respondents, 391,815 responses, and
462,724 burden hours. This is an
estimated increase of 20 responses and
25 burden hours from the currently
approved burden for this collection,
with no change in the number of
respondents.
Respondents (Affected Public):
Summer Food Service Program
operators (non-profit institutions and
camps).
Recordkeeping
Estimated Number of Respondents:
20.
Estimated Number of Responses per
Respondent: 1.
Estimated Total Annual Responses:
20.
Estimated Time per Response:
Approximately 75 minutes (1.25 hours).
Estimate Total Annual Burden on
Respondents: 25.
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Description of
Activities
Summer Food
Service Program
sponsors maintain
documentation
demonstrating that
service sites
qualify for the
menu planning
option to serve
vegetables to meet
the grains
requirement by
serving primarily
American Indian
and Alaska Native
children
Total Summer
Food Service
Program
Operators
(business level)
Recordkee in
Total
Recordkeeping
0MB Control
Number 05840280
Regulation
Citation
Recordkee in for 0MB Control Number 0584-0280
Estimated
Averag
Total
e
Estimated# Frequen
Total
Annual
Burden
Burden
of
cyof
Annual
Hours
Respondent Respons Response
Hours Due
per
to Final
s
e
s
Respon
Rulemakin
se
225.16(f)(3
)
Hours
Currently
Approved
Estimated
Total
Difference
25
0
25
20
25
0
25
20
25
0
25
20
1
20
1
SUMMARY OF BURDEN: RECORDKEEPING AND REPORTING
TOTAL NO. RESPONDENTS
63,942
AVERAGE NO. RESPONSES PER RESPONDENT
6.13
TOTAL ANNUAL RESPONSES
391,815
AVERAGE HOURS PER RESPONSE
1.181
TOTAL BURDEN HOURS
List of Subjects
7 CFR Part 215
E-Government Act Compliance
7 CFR Part 210
The Department is committed to
complying with the E-Government Act,
to promote the use of the internet and
other information technologies to
provide increased opportunities for
citizen access to Government
information and services, and for other
purposes.
Grant programs—education, Grant
programs—health, Infants and children,
Nutrition, Penalties, Reporting and
recordkeeping requirements, School
breakfast and lunch programs, Surplus
agricultural commodities.
Food assistance programs, Grant
programs—education, Grant program—
health, Infants and children, Milk,
Reporting and recordkeeping
requirements.
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7 CFR Part 220
Grant programs—education, Grant
programs—health, Infants and children,
Nutrition, Reporting and recordkeeping
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requirements, School breakfast and
lunch programs.
7 CFR Part 225
Food assistance programs, Grant
programs—health, Infants and children,
Labeling, Reporting and recordkeeping
requirements.
7 CFR Part 226
Accounting, Aged, Day care, Food
assistance programs, Grant programs,
Grant programs—health, Individuals
with disabilities, Infants and children,
Intergovernmental relations, Loan
programs, Reporting and recordkeeping
requirements, Surplus agricultural
commodities.
Accordingly, FNS amends 7 CFR parts
210, 215, 220, 225, and 226 as follows:
PART 210—NATIONAL SCHOOL
LUNCH PROGRAM
1. The authority citation for part 210
continues to read as follows:
■
Authority: 42 U.S.C. 1751–1760, 1779.
2. Revise and republish § 210.2 to read
as follows:
■
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§ 210.2
Definitions.
For the purposes of this part:
2 CFR part 200, means the Uniform
Administrative Requirements, Cost
Principles, and Audit Requirements for
Federal Awards published by OMB. The
part reference covers applicable:
Acronyms and Definitions (subpart A),
General Provisions (subpart B), Post
Federal Award Requirements (subpart
D), Cost Principles (subpart E), and
Audit Requirements (subpart F). (NOTE:
Pre-Federal Award Requirements and
Contents of Federal Awards (subpart C)
does not apply to the National School
Lunch Program).
Act means the National School Lunch
Act, as amended.
Afterschool care program means a
program providing organized child care
services to enrolled school-age children
afterschool hours for the purpose of care
and supervision of children. Those
programs must be distinct from any
extracurricular programs organized
primarily for scholastic, cultural or
athletic purposes.
Applicable credits shall have the
meaning established in 2 CFR part 200
and USDA implementing regulations 2
CFR parts 400 and 415.
Attendance factor means a percentage
developed no less than once each school
year which accounts for the difference
between enrollment and attendance.
The attendance factor may be developed
by the school food authority, subject to
State agency approval, or may be
developed by the State agency. In the
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absence of a local or State attendance
factor, the school food authority will use
an attendance factor developed FNS.
When taking the attendance factor into
consideration, school food authorities
will assume that all children eligible for
free and reduced price lunches attend
school at the same rate as the general
school population.
Average Daily Participation means the
average number of children, by
eligibility category, participating in the
Program each operating day. These
numbers are obtained by dividing:
(1) The total number of free lunches
claimed during a reporting period by the
number of operating days in the same
period;
(2) The total number of reduced price
lunches claimed during a reporting
period by the number of operating days
in the same period; and
(3) The total number of paid lunches
claimed during a reporting period by the
number of operating days in the same
period.
Child means:
(1) A student of high school grade or
under as determined by the State
educational agency, who is enrolled in
an educational unit of high school grade
or under as described in paragraphs (1)
and (2) of the definition of ‘‘School’’ in
this section, including students with a
disability who participate in a school
program established for persons with
disabilities;
(2) A person under 21 chronological
years of age who is enrolled in an
institution or center as described in
paragraph (3) of the definition of
‘‘School’’ in this section; or
(3) For afterschool care programs,
persons aged 18 and under at the start
of the school year, and persons of any
age with a disability who participate in
a school program established for
persons with disabilities.
Child with a disability means any
child who has a physical or mental
impairment that substantially limits one
or more major life activities of such
individual, has a record of such an
impairment, or has been regarded as
having such an impairment.
Commodity School Program means
the Program under which participating
schools operate a nonprofit lunch
program in accordance with this part
and receive donated food assistance in
lieu of general cash assistance. Schools
participating in the Commodity School
Program will also receive special cash
and donated food assistance in
accordance with § 210.4(c).
Contractor means a commercial
enterprise, public or nonprofit private
organization or individual that enters
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into a contract with a school food
authority.
Cost reimbursable contract means a
contract that provides for payment of
incurred costs to the extent prescribed
in the contract, with or without a fixed
fee.
Days means calendar days unless
otherwise specified.
Department means the United States
Department of Agriculture.
Distributing agency means a State
agency which enters into an agreement
with the Department for the distribution
to schools of donated foods pursuant to
part 250 of this chapter.
Donated foods means food
commodities donated by the
Department for use in nonprofit lunch
programs.
Fiscal year means a period of 12
calendar months beginning October 1 of
any year and ending with September 30
of the following year.
Fixed fee means an agreed upon
amount that is fixed at the inception of
the contract. In a cost reimbursable
contract, the fixed fee includes the
contractor’s direct and indirect
administrative costs and profit allocable
to the contract.
Fixed-price contract means a contract
that charges a fixed cost per meal, or a
fixed cost for a certain time period.
Fixed-price contracts may include an
economic price adjustment tied to a
standard index.
FNS means the Food and Nutrition
Service, United States Department of
Agriculture.
FNSRO means the appropriate
Regional Office of the Food and
Nutrition Service of the Department.
Food item means a specific food
offered within a food component.
Food service management company
means a commercial enterprise or a
nonprofit organization which is or may
be contracted with by the school food
authority to manage any aspect of the
school food service.
Free lunch means a lunch served
under the Program to a child from a
household eligible for such benefits
under part 245 of this chapter and for
which neither the child nor any member
of the household pays or is required to
work.
Local educational agency means a
public board of education or other
public or private nonprofit authority
legally constituted within a State for
either administrative control or
direction of, or to perform a service
function for, public or private nonprofit
elementary schools or secondary
schools in a city, county, township,
school district, or other political
subdivision of a State, or for a
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combination of school districts or
counties that is recognized in a State as
an administrative agency for its public
or private nonprofit elementary schools
or secondary schools. The term also
includes any other public or private
nonprofit institution or agency having
administrative control and direction of
a public or private nonprofit elementary
school or secondary school, including
residential child care institutions,
Bureau of Indian Affairs schools, and
educational service agencies and
consortia of those agencies, as well as
the State educational agency in a State
or territory in which the State
educational agency is the sole
educational agency for all public or
private nonprofit schools.
Lunch means a meal service that
meets the meal requirements in § 210.10
for lunches.
Meal component means one of the
food groups which comprise
reimbursable meals. The meal
components are: fruits, vegetables,
grains, meats/meat alternates, and fluid
milk.
National School Lunch Program
means the Program under which
participating schools operate a nonprofit
lunch program in accordance with this
part. General and special cash assistance
and donated food assistance are made
available to schools in accordance with
this part.
Net cash resources means all monies,
as determined in accordance with the
State agency’s established accounting
system, that are available to or have
accrued to a school food authority’s
nonprofit school food service at any
given time, less cash payable. Such
monies may include, but are not limited
to, cash on hand, cash receivable,
earnings on investments, cash on
deposit and the value of stocks, bonds
or other negotiable securities.
Nonprofit means, when applied to
schools or institutions eligible for the
Program, exempt from income tax under
section 501(c)(3) of the Internal Revenue
Code of 1986.
Nonprofit school food service means
all food service operations conducted by
the school food authority principally for
the benefit of schoolchildren, all of the
revenue from which is used solely for
the operation or improvement of such
food services.
Nonprofit school food service account
means the restricted account in which
all of the revenue from all food service
operations conducted by the school food
authority principally for the benefit of
school children is retained and used
only for the operation or improvement
of the nonprofit school food service.
This account will include, as
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appropriate, non-Federal funds used to
support paid lunches as provided in
§ 210.14(e), and proceeds from
nonprogram foods as provided in
§ 210.14(f).
OIG means the Office of the Inspector
General of the Department.
Paid lunch means a lunch served to
children who are either not certified for
or elect not to receive the free or
reduced price benefits offered under
part 245 of this chapter. The Department
subsidizes each paid lunch with both
general cash assistance and donated
foods. The prices for paid lunches in a
school food authority must be
determined in accordance with
§ 210.14(e).
Point of Service means that point in
the food service operation where a
determination can accurately be made
that a reimbursable free, reduced price,
or paid lunch has been served to an
eligible child.
Program means the National School
Lunch Program and the Commodity
School Program.
Reduced price lunch means a lunch
served under the Program:
(1) To a child from a household
eligible for such benefits under part 245
of this chapter;
(2) For which the price is less than the
school food authority designated full
price of the lunch and which does not
exceed the maximum allowable reduced
price specified under part 245 of this
chapter; and
(3) For which neither the child nor
any member of the household is
required to work.
Reimbursement means Federal cash
assistance including advances paid or
payable to participating schools for
lunches meeting the requirements of
§ 210.10 and served to eligible children.
Revenue, when applied to nonprofit
school food service, means all monies
received by or accruing to the nonprofit
school food service in accordance with
the State agency’s established
accounting system including, but not
limited to, children’s payments,
earnings on investments, other local
revenues, State revenues, and Federal
cash reimbursements.
School means:
(1) An educational unit of high school
grade or under, recognized as part of the
educational system in the State and
operating under public or nonprofit
private ownership in a single building
or complex of buildings;
(2) Any public or nonprofit private
classes of preprimary grade when they
are conducted in the aforementioned
schools; or
(3) Any public or nonprofit private
residential child care institution, or
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distinct part of such institution, which
operates principally for the care of
children, and, if private, is licensed to
provide residential child care services
under the appropriate licensing code by
the State or a subordinate level of
government, except for residential
summer camps which participate in the
Summer Food Service Program for
Children, Job Corps centers funded by
the Department of Labor, and private
foster homes.
School food authority means the
governing body which is responsible for
the administration of one or more
schools; and has the legal authority to
operate the Program therein or be
otherwise approved by FNS to operate
the Program.
School nutrition program directors are
those individuals directly responsible
for the management of the day-to-day
operations of school food service for all
participating schools under the
jurisdiction of the school food authority.
School nutrition program managers
are those individuals directly
responsible for the management of the
day-to-day operations of school food
service for a participating school(s).
School nutrition program staff are
those individuals, without managerial
responsibilities, involved in day-to-day
operations of school food service for a
participating school(s).
School week means the period of time
used to determine compliance with the
meal requirements in § 210.10. The
period will be a normal school week of
five consecutive days; however, to
accommodate shortened weeks resulting
from holidays and other scheduling
needs, the period must be a minimum
of three consecutive days and a
maximum of seven consecutive days.
Weeks in which school lunches are
offered less than three times must be
combined with either the previous or
the coming week.
School year means a period of 12
calendar months beginning July 1 of any
year and ending June 30 of the following
year.
Seamless Summer Option means the
meal service alternative authorized by
Section 13(a)(8) of the Richard B.
Russell National School Lunch Act, 42
U.S.C. 1761(a)(8), under which public or
nonprofit school food authorities
participating in the National School
Lunch Program or School Breakfast
Program offer meals at no cost to
children during the traditional summer
vacation periods and, for year-round
schools, vacation periods longer than 10
school days.
Secretary means the Secretary of
Agriculture.
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State means any of the 50 States,
District of Columbia, the
Commonwealth of Puerto Rico, the
Virgin Islands, Guam, and, as
applicable, American Samoa and the
Commonwealth of the Northern
Marianas.
State agency means:
(1) The State educational agency;
(2) Any other agency of the State
which has been designated by the
Governor or other appropriate executive
or legislative authority of the State and
approved by the Department to
administer the Program in schools, as
specified in § 210.3(b) of this chapter; or
(3) The FNSRO, where the FNSRO
administers the Program as specified in
§ 210.3(c) of this chapter.
State educational agency means, as
the State legislature may determine,
(1) The chief State school officer (such
as the State Superintendent of Public
Instruction, Commissioner of Education,
or similar officer), or
(2) A board of education controlling
the State department of education.
State licensed healthcare professional
means an individual who is authorized
to write medical prescriptions under
State law. This may include, but is not
limited to, a licensed physician, nurse
practitioner, or physician’s assistant,
depending on State law.
Tofu means a soybean-derived food,
made by a process in which soybeans
are soaked, ground, mixed with water,
heated, filtered, coagulated, and formed
into cakes. Basic ingredients are whole
soybeans, one or more food-grade
coagulants (typically a salt or an acid),
and water. Tofu products must conform
to FNS guidance to count toward the
meats/meat alternates component.
USDA implementing regulations
include the following: 2 CFR part 400,
Uniform Administrative Requirements,
Cost Principles, and Audit
Requirements for Federal Awards; 2
CFR part 415, General Program
Administrative Regulations; 2 CFR part
416, General Program Administrative
Regulations for Grants and Cooperative
Agreements to State and Local
Governments; and 2 CFR part 418, New
Restrictions on Lobbying.
Whole grain-rich is the term
designated by FNS to indicate that the
grain content of a product is between 50
and 100 percent whole grain with any
remaining grains being enriched.
Whole grains means grains that
consist of the intact, ground, cracked, or
flaked grain seed whose principal
anatomical components—the starchy
endosperm, germ and bran—are present
in the same relative proportions as they
exist in the intact grain seed.
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Yogurt means commercially prepared
coagulated milk products obtained by
the fermentation of specific bacteria,
that meet milk fat or milk solid
requirements and to which flavoring
foods or ingredients may be added.
These products are covered by the Food
and Drug Administration’s Definition
and Standard of Identity for yogurt, 21
CFR 131.200, and low-fat yogurt and
non-fat yogurt covered as a standardized
food under 21 CFR 130.10.
■ 3. In § 210.3, revise and republish
paragraph (a) to read as follows:
§ 210.3
Administration.
(a) FNS. FNS will act on behalf of the
Department in the administration of the
Program.
*
*
*
*
*
■ 4. In § 210.4, revise and republish
paragraphs (a) and (b)(3) and (4) to read
as follows:
§ 210.4 Cash and donated food assistance
to States.
(a) General. To the extent funds are
available, FNS will make cash
assistance available in accordance with
the provisions of this section to each
State agency for lunches and afterschool
snacks served to children under the
National School Lunch and Commodity
School Programs. To the extent donated
foods are available, FNS will provide
donated food assistance to distributing
agencies for each lunch served in
accordance with the provisions of this
part and part 250 of this chapter.
(b) * * *
(3) Cash assistance for afterschool
snacks. For those eligible schools (as
defined in § 210.10(o)(1)) operating
afterschool care programs and electing
to serve afterschool snacks to enrolled
children, funds will be made available
to each State agency, each school year
in an amount no less than the sum of
the products obtained by multiplying:
(i) The number of afterschool snacks
served in the afterschool care program
within the State to children from
families that do not satisfy the income
standards for free and reduced price
school meals by 2.75 cents;
(ii) The number of afterschool snacks
served in the afterschool care program
within the State to children from
families that satisfy the income standard
for free school meals by 30 cents; and
(iii) The number of afterschool snacks
served in the afterschool care program
within the State to children from
families that satisfy the income standard
for reduced price school meals by 15
cents.
(4) Annual adjustments for cash
assistance for afterschool snacks. The
rates in paragraph (b)(3) of this section
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32063
are the base rates established in August
1981 for the Child and Adult Care Food
Program (CACFP). FNS will prescribe
annual adjustments to these rates in the
same Notice as the National Average
Payment Rates for lunches. These
adjustments will ensure that the
reimbursement rates for afterschool
snacks served under this part are the
same as those implemented for
afterschool snacks in the CACFP.
*
*
*
*
*
5. In § 210.7, revise and republish
paragraphs (a), (c) introductory text,
(c)(1), (d), and (e) to read as follows:
■
§ 210.7 Reimbursement for school food
authorities.
(a) General. Reimbursement payments
to finance nonprofit school food service
operations will be made only to school
food authorities operating under a
written agreement with the State
agency. Subject to the provisions of
§ 210.8(c), such payments may be made
for lunches and afterschool snacks
served in accordance with provisions of
this part and part 245 of this chapter in
the calendar month preceding the
calendar month in which the agreement
is executed. These reimbursement
payments include general cash
assistance for all lunches served to
children under the National School
Lunch Program and special cash
assistance payments for free or reducedprice lunches served to children
determined eligible for such benefits
under the National School Lunch and
Commodity School Programs.
Reimbursement payments will also be
made for afterschool snacks served to
eligible children in afterschool care
programs in accordance with the rates
established in § 210.4(b)(3). Approval
will be in accordance with part 245.
*
*
*
*
*
(c) Reimbursement limitations. To be
entitled to reimbursement under this
part, each school food authority must
ensure that Claims for Reimbursement
are limited to the number of free,
reduced price, and paid lunches and
afterschool snacks that are served to
children eligible for free, reduced price,
and paid lunches and afterschool
snacks, respectively, for each day of
operation.
(1) Lunch count system. To ensure
that the Claim for Reimbursement
accurately reflects the number of
lunches and afterschool snacks served
to eligible children, the school food
authority must, at a minimum:
(i) Correctly approve each child’s
eligibility for free and reduced price
lunches and afterschool snacks based on
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the requirements prescribed under part
245 of this chapter;
(ii) Maintain a system to issue benefits
and to update the eligibility of children
approved for free or reduced price
lunches and afterschool snacks. The
system must:
(A) Accurately reflect eligibility status
as well as changes in eligibility made
after the initial approval process due to
verification findings, transfers, reported
changes in income or household size,
etc.; and
(B) Make the appropriate changes in
eligibility after the initial approval
process on a timely basis so that the
mechanism the school food authority
uses to identify currently eligible
children provides a current and accurate
representation of eligible children.
Changes in eligibility which result in
increased benefit levels must be made as
soon as possible but no later than 3
operating days of the date the school
food authority makes the final decision
on a child’s eligibility status. Changes in
eligibility which result in decreased
benefit levels must be made as soon as
possible but no later than 10 operating
days of the date the school food
authority makes the final decision on
the child’s eligibility status;
(iii) Base Claims for Reimbursement
on lunch counts, taken daily at the point
of service, which correctly identify the
number of free, reduced price and paid
lunches served to eligible children;
(iv) Correctly record, consolidate and
report those lunch and afterschool snack
counts on the Claim for Reimbursement;
and
(v) Ensure that Claims for
Reimbursement do not request payment
for any excess lunches produced, as
prohibited in § 210.10(a)(2), or nonProgram lunches (i.e., a la carte or adult
lunches) or for more than one
afterschool snack per child per day.
*
*
*
*
*
(d) Performance-based cash
assistance. The State agency must
provide performance-based cash
assistance as authorized under
§ 210.4(b)(1) for lunches served in
school food authorities certified by the
State agency to be in compliance with
meal pattern and nutrition requirements
set forth in § 210.10 and, if the school
food authority participates in the School
Breakfast Program (part 220 of this
chapter), § 220.8 of this chapter, as
applicable. State agencies must establish
procedures to certify school food
authorities for performance-based cash
assistance in accordance with guidance
established by FNS. Such procedures
must ensure State agencies:
(1) Make certification procedures
readily available to school food
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authorities and provide guidance
necessary to facilitate the certification
process.
(2) Require school food authorities to
submit documentation to demonstrate
compliance with meal pattern
requirements set forth in § 210.10 and
§ 220.8 of this chapter, as applicable.
Such documentation must reflect meal
service at or about the time of
certification.
(3) State agencies must review
certification documentation submitted
by the school food authority to ensure
compliance with meal pattern
requirements set forth in § 210.10, or
§ 220.8 of this chapter, as applicable.
For certification purposes, State
agencies should consider any school
food authority compliant:
(i) If when evaluating daily and
weekly range requirements for grains
and meat/meat alternates, the
certification documentation shows
compliance with the daily and weekly
minimums for these two components,
regardless of whether the school food
authority has exceeded the maximums
for the same components.
(ii) If when evaluating the service of
frozen fruit, the school food authority
serves products that contain added
sugar.
(4) Certification procedures must
ensure that no performance-based cash
assistance is provided to school food
authorities for meals served prior to
October 1, 2012.
(5) Within 60 calendar days of a
certification submission or as otherwise
authorized by FNS, review submitted
materials and notify school food
authorities of the certification
determination, the date that
performance-based cash assistance is
effective, and consequences for noncompliance,
(6) Disburse performance-based cash
assistance for all lunches served
beginning with the start of certification
provided that documentation reflects
meal service in the calendar month the
certification materials are submitted or,
in the month preceding the calendar
month of submission.
(e) Reimbursements for afterschool
snacks. The State agency will reimburse
the school food authority for afterschool
snacks served in eligible schools (as
defined in § 210.10(o)(1)) operating
afterschool care programs under the
National School Lunch Program (NSLP)
in accordance with the rates established
in § 210.4(b).
■ 6. In § 210.8, revise and republish
paragraphs (c) and (d) to read as follows:
§ 210.8
*
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Claims for reimbursement.
*
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*
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*
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(c) Content of claim. The Claim for
Reimbursement must include data in
sufficient detail to justify the
reimbursement claimed and to enable
the State agency to provide the Report
of School Program Operations required
under § 210.5(d). Such data must
include, at a minimum, the number of
free, reduced price, and paid lunches
and afterschool snacks served to eligible
children. The claim must be signed by
a school food authority official.
(1) Consolidated claim. The State
agency may authorize a school food
authority to submit a consolidated
Claim for Reimbursement for all schools
under its jurisdiction, provided that, the
data on each school’s operations
required in this section are maintained
on file at the local office of the school
food authority and the claim separates
consolidated data for commodity
schools from data for other schools.
Unless otherwise approved by FNS, the
Claim for Reimbursement for any month
must include only lunches and
afterschool snacks served in that month
except if the first or last month of
Program operations for any school year
contains 10 operating days or less, such
month may be combined with the Claim
for Reimbursement for the appropriate
adjacent month. However, Claims for
Reimbursement may not combine
operations occurring in two fiscal years.
If a single State agency administers any
combination of the Child Nutrition
Programs, a school food authority will
be able to use a common claim form
with respect to claims for
reimbursement for meals served under
those programs.
(2) October data. For the month of
October, the State agency must also
obtain, either through the Claim for
Reimbursement or other means, the total
number of children approved for free
lunches and afterschool snacks, the total
number of children approved for
reduced price lunches and afterschool
snacks, and the total number of children
enrolled in the school food authority as
of the last day of operation in October.
The school food authority must submit
this data to the State agency no later
than December 31 of each year. State
agencies may establish shorter deadlines
at their discretion. In addition, the State
agency may require school food
authorities to provide this data for a
more current month if for use in the
State agency claims review process.
(d) Advance funds. The State agency
may advance funds available for the
Program to a school food authority in an
amount equal to the amount of
reimbursement estimated to be needed
for one month’s operation. Following
the receipt of claims, the State agency
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will make adjustments, as necessary, to
ensure that the total amount of
payments received by the school food
authority for the fiscal year does not
exceed an amount equal to the number
of lunches and afterschool snacks by
reimbursement type served to children
times the respective payment rates
assigned by the State in accordance with
§ 210.7(b). The State agency must
recover advances of funds to any school
food authority failing to comply with
the 60-day claim submission
requirements in paragraph (b) of this
section.
■ 7. In § 210.9, revise and republish
paragraphs (b)(21) and (c) to read as
follows:
§ 210.9
Agreement with State agency.
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*
*
*
*
*
(b) * * *
(21) No later than December 31 of
each year, provide the State agency with
a list of all schools under its jurisdiction
in which 50 percent or more of enrolled
children have been determined eligible
for free or reduced price meals as of the
last operating day the preceding
October. The State agency may
designate a month other than October
for the collection of this information, in
which case the list must be provided to
the State agency within 60 calendar
days following the end of the month
designated by the State agency. In
addition, each school food authority
must provide, when available for the
schools under its jurisdiction, and upon
the request of a sponsoring organization
of day care homes of the Child and
Adult Care Food Program, information
on the boundaries of the attendance
areas for the schools identified as
having 50 percent or more of enrolled
children certified eligible for free or
reduced price meals.
(c) Afterschool care requirements.
Those school food authorities with
eligible schools (as defined in
§ 210.10(o)(1)) that elect to serve
afterschool snacks during afterschool
care programs, must agree to:
(1) Serve afterschool snacks which
meet the minimum requirements
prescribed in § 210.10;
(2) Price the afterschool snack as a
unit;
(3) Serve afterschool snacks free or at
a reduced price to all children who are
determined by the school food authority
to be eligible for free or reduced price
school meals under part 245 of this
chapter;
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(4) If charging for meals, the charge
for a reduced price afterschool snack
must not exceed 15 cents;
(5) Claim reimbursement at the
assigned rates only for afterschool
snacks served in accordance with the
agreement;
(6) Claim reimbursement for no more
than one afterschool snack per child per
day;
(7) Review each afterschool care
program two times a year; the first
review must be made during the first
four weeks that the school is in
operation each school year, except that
an afterschool care program operating
year round must be reviewed during the
first four weeks of its initial year of
operation, once more during its first
year of operation, and twice each school
year thereafter; and
(8) Comply with all requirements of
this part, except that, claims for
reimbursement need not be based on
‘‘point of service’’ afterschool snack
counts (as required by § 210.9(b)(9)).
■ 8. In § 210.10:
■ a. Revise and republish paragraph
(a)(1)(i);
■ b. Revise paragraphs (a)(3) and (b)
through (f);
■ c. Revise and republish paragraph (g);
■ d. Revise paragraph (h);
■ e. Revise and republish paragraphs (i),
(j), and (k)(2);
■ f. Revise paragraphs (m), (o), (p), and
(q); and
■ g. Add paragraph (r).
The revisions and addition read as
follows:
§ 210.10 Meal requirements for lunches
and requirements for afterschool snacks.
(a) * * *
(1) * * *
(i) Requirements for lunch. School
lunches offered to children age 5 or
older must meet, at a minimum, the
meal requirements in paragraph (b) of
this section. Schools must follow a foodbased menu planning approach and
produce enough food to offer each child
the quantities specified in the meal
pattern established in paragraph (c) of
this section for each age/grade group
served in the school. In addition, school
lunches must meet the dietary
specifications in paragraph (f) of this
section. Schools offering lunches to
children ages 1 through 4 and infants
must meet the meal pattern
requirements in paragraphs (p) and (q)
of this section, as applicable. Schools
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32065
must make plain potable water available
and accessible without restriction to
children at no charge in the place(s)
where lunches are served during the
meal service.
*
*
*
*
*
(3) Production and menu records.
Schools or school food authorities, as
applicable, must keep production and
menu records for the meals they
produce. These records must show how
the meals offered contribute to the
required meal components and food
quantities for each age/grade group
every day. Schools or school food
authorities must maintain records of the
latest nutritional analysis of the school
menus conducted by the State agency.
Information on maintaining production
and menu records may be found in FNS
guidance.
(b) Meal requirements for school
lunches. School lunches for children
ages 5 and older must reflect food and
nutrition requirements specified by the
Secretary. Compliance with these
requirements is measured as follows:
(1) On a daily basis:
(i) Meals offered to each age/grade
group must include the meal
components and food quantities
specified in the meal pattern in
paragraph (c) of this section; and
(ii) The meal selected by each student
must have the number of meal
components required for a reimbursable
meal and include at least one fruit or
vegetable.
(2) Over a 5-day school week:
(i) Average calorie content of meals
offered to each age/grade group must be
within the minimum and maximum
calorie levels specified in paragraph (f)
of this section;
(ii) Average saturated fat content of
the meals offered to each age/grade
group must be less than 10 percent of
total calories;
(iii) By July 1, 2027, average added
sugars content of the meals offered to
each age/grade group must be less than
10 percent of total calories; and
(iv) Average sodium content of the
meals offered to each age/grade group
must not exceed the maximum level
specified in paragraph (f) of this section.
(c) Meal pattern for school lunches.
Schools must offer the meal components
and quantities required in the lunch
meal pattern established in the
following table:
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TABLE 1 TO PARAGRAPH (c) INTRODUCTORY TEXT—NATIONAL SCHOOL LUNCH PROGRAM MEAL PATTERN
Amount of food 1 per week (minimum per day)
Meal components
Grades K–5
Fruits (cups) 2 ...............................................................................................................................
Vegetables (cups) 2 ......................................................................................................................
Dark Green Subgroup 3 ........................................................................................................
Red/Orange Subgroup 3 .......................................................................................................
Beans, Peas, and Lentils Subgroup 3 ..................................................................................
Starchy Subgroup 3 ...............................................................................................................
Other Vegetables Subgroup 3 4 .............................................................................................
Additional Vegetables from Any Subgroup to Reach Total .................................................
Grains (oz. eq.) 5 ..........................................................................................................................
Meats/Meat Alternates (oz. eq.) 6 ................................................................................................
Fluid Milk (cups) 7 ........................................................................................................................
Grades 6–8
21⁄2 (1⁄2)
33⁄4 (3⁄4)
1⁄2
3⁄4
1⁄2
1⁄2
1⁄2
1
8–9 (1)
8–10 (1)
5 (1)
Grades 9–12
21⁄2 (1⁄2)
33⁄4 (3⁄4)
1⁄2
3⁄4
1⁄2
1⁄2
1⁄2
1
8–10 (1)
9–10 (1)
5 (1)
5 (1)
5 (1)
1⁄2
11⁄4
1⁄2
1⁄2
3⁄4
11⁄2
10–12 (2)
10–12 (2)
5 (1)
600–700
<10
<10
≤1,225 mg
≤1,035 mg
750–850
<10
<10
≤1,280 mg
≤1,080 mg
Dietary Specifications: Daily Amount Based on the Average for a 5-Day Week 8
Minimum-Maximum Calories (kcal) .............................................................................................
Saturated Fat (% of total calories) ..............................................................................................
Added Sugars (% of total calories) .............................................................................................
Sodium Limit: In place through June 30, 2027 ...........................................................................
Sodium Limit: Must be implemented by July 1, 2027 .................................................................
550–650
<10
<10
≤1,110 mg
≤935 mg
1 Food
items included in each group and subgroup and amount equivalents.
creditable serving is 1⁄8 cup. One quarter-cup of dried fruit counts as 1⁄2 cup of fruit; 1 cup of leafy greens counts as 1⁄2 cup of vegetables. No more than half of the fruit or vegetable offerings may be in the form of juice. All juice must be 100 percent full-strength.
3 Larger amounts of these vegetables may be served.
4 This subgroup consists of ‘‘Other vegetables’’ as defined in paragraph (c)(2)(ii)(E) of this section. For the purposes of the NSLP, the ‘‘Other
vegetables’’ requirement may be met with any additional amounts from the dark green, red/orange, and bean, peas, and lentils vegetable subgroups as defined in paragraph (c)(2)(ii) of this section.
5 Minimum creditable serving is 0.25 oz. eq. At least 80 percent of grains offered weekly (by ounce equivalents) must be whole grain-rich as
defined in § 210.2 and the remaining grains items offered must be enriched.
6 Minimum creditable serving is 0.25 oz. eq.
7 Minimum creditable serving is 8 fluid ounces. All fluid milk must be fat-free (skim) or low-fat (1 percent fat or less) and must meet the requirements in paragraph (d) of this section.
8 By July 1, 2027, schools must meet the dietary specification for added sugars. Schools must meet the sodium limits by the dates specified in
this chart. Discretionary sources of calories may be added to the meal pattern if within the dietary specifications.
lotter on DSK11XQN23PROD with RULES3
2 Minimum
(1) Age/grade groups. Schools must
plan menus for students using the
following age/grade groups: Grades K–5
(ages 5–10), grades 6–8 (ages 11–13),
and grades 9–12 (ages 14–18). If an
unusual grade configuration in a school
prevents the use of these established
age/grade groups, students in grades K–
5 and grades 6–8 may be offered the
same food quantities at lunch provided
that the calorie and sodium standards
for each age/grade group are met. No
customization of the established age/
grade groups is allowed.
(2) Meal components. Schools must
offer students in each age/grade group
the meal components specified in this
paragraph (c).
(i) Fruits component. Schools must
offer fruits daily as part of the lunch
menu. Fruits that are fresh, frozen, or
dried, or canned in light syrup, water or
fruit juice may be offered to meet the
requirements of this paragraph (c)(2)(i).
All fruits are credited based on their
volume as served, except that 1⁄4 cup of
dried fruit counts as 1⁄2 cup of fruit.
Only pasteurized, full-strength fruit
juice may be offered, and may be
credited to meet no more than one-half
of the fruits component.
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(ii) Vegetables component. Schools
must offer vegetables daily as part of the
lunch menu. Fresh, frozen, or canned
vegetables and dry beans, peas, and
lentils may be offered to meet this
requirement. All vegetables are credited
based on their volume as served, except
that 1 cup of leafy greens counts as 1⁄2
cup of vegetables and tomato paste and
puree are credited based on calculated
volume of the whole food equivalency.
Pasteurized, full-strength vegetable juice
may be offered to meet no more than
one-half of the vegetables component.
Vegetable offerings at lunch over the
course of the week must include the
following vegetable subgroups, as
defined in this section in the quantities
specified in the meal pattern in
paragraph (c) of this section:
(A) Dark green vegetables subgroup.
This subgroup includes vegetables such
as bok choy, broccoli, collard greens,
dark green leafy lettuce, kale, mesclun,
mustard greens, romaine lettuce,
spinach, turnip greens, and watercress;
(B) Red/orange vegetables subgroup.
This subgroup includes vegetables such
as acorn squash, butternut squash,
carrots, pumpkin, tomatoes, tomato
juice, and sweet potatoes;
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(C) Beans, peas, and lentils vegetable
subgroup. This subgroup includes
vegetables such as black beans, blackeyed peas (mature, dry), garbanzo beans
(chickpeas), kidney beans, lentils, navy
beans pinto beans, soybeans, split peas,
and white beans. Cooked dry beans,
peas, and lentils may be counted as
either a vegetable or as a meat alternate
but not as both in the same dish. When
offered toward the protein sources
component, beans, peas, and lentils may
count toward the weekly beans, peas,
and lentils vegetable subgroup
requirement, but may not count toward
the daily or weekly vegetable
component requirement;
(D) Starchy vegetables subgroup. This
subgroup includes vegetables such as
black-eyed peas (not dry), corn, cassava,
green bananas, green peas, green lima
beans, plantains, taro, water chestnuts,
and white potatoes; and
(E) Other vegetables subgroup. This
subgroup includes all other fresh,
frozen, and canned vegetables, cooked
or raw, such as artichokes, asparagus,
avocados, bean sprouts, beets, Brussels
sprouts, cabbage, cauliflower, celery,
cucumbers, eggplant, green beans, green
peppers, iceberg lettuce, mushrooms,
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okra, onions, parsnips, turnips, wax
beans, and zucchini.
(iii) Grains component. Schools must
offer grains daily as part of the lunch
menu.
(A) Whole grain-rich requirement.
Whole grain-rich is the term designated
by FNS to indicate that the grain content
of a product is between 50 and 100
percent whole grain with any remaining
grains being enriched. At least 80
percent of grains offered at lunch
weekly must, based on ounce
equivalents, meet the whole grain-rich
criteria as defined in § 210.2, and the
remaining grain items offered must be
enriched.
(B) Breakfast cereals. By July 1, 2025,
breakfast cereals must contain no more
than 6 grams of added sugars per dry
ounce.
(C) Desserts. Schools may count up to
two ounce equivalents of grain-based
desserts per week toward meeting the
grains requirement at lunch.
Information on crediting grain-based
desserts may be found in FNS guidance.
(D) Daily and weekly servings. The
grains component is based on minimum
daily servings plus total servings over a
5-day school week. Schools serving
lunch 6 or 7 days per week must
increase the weekly grains quantity by
approximately 20 percent (1⁄5) for each
additional day. When schools operate
less than 5 days per week, they may
decrease the weekly quantity by
approximately 20 percent (1⁄5) for each
day less than 5.
(iv) Meats/meat alternates
component. Schools must offer meats/
meat alternates daily as part of the
lunch meal pattern. The quantity of the
meat/meat alternate must be the edible
portion as served. This component must
be served in a main dish or in a main
dish and only one other food item.
Schools without daily choices in this
component should not serve any one
meat/meat alternate or form of meat/
meat alternate (for example, ground,
diced, pieces) more than three times in
the same week. If a portion size of this
component does not meet the daily
requirement for a particular age/grade
group, schools may supplement it with
another meat/meat alternate to meet the
full requirement. Schools may adjust the
daily quantities of this component
provided that a minimum of one ounce
is offered daily to students in grades K–
8 and a minimum of two ounces is
offered daily to students in grades 9–12,
and the total weekly requirement is met
over a 5-day period. Information on
crediting meats/meat alternates may be
found in FNS guidance.
(A) Enriched macaroni. Enriched
macaroni with fortified protein as
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defined in appendix A to this part may
be used to meet part of the meats/meat
alternates requirement when used as
specified in appendix A to this part. An
enriched macaroni product with
fortified protein as defined in appendix
A to this part may be used to meet part
of the meats/meat alternates component
or the grains component but may not
meet both food components in the same
lunch.
(B) Nuts and seeds. Nuts and seeds
and their butters are allowed as a meat
alternate. Acorns, chestnuts, and
coconuts do not credit as meat
alternates because of their low protein
and iron content. Nut and seed meals or
flours may credit only if they meet the
requirements for Alternate Protein
Products established in appendix A to
this part.
(C) Yogurt. Yogurt may be offered to
meet all or part of the meats/meat
alternates component. Yogurt may be
plain or flavored, unsweetened or
sweetened. By July 1, 2025, yogurt must
contain no more than 12 grams of added
sugars per 6 ounces (2 grams of added
sugars per ounce). Noncommercial and/
or non-standardized yogurt products,
such as frozen yogurt, drinkable yogurt
products, homemade yogurt, yogurt
flavored products, yogurt bars, yogurt
covered fruits and/or nuts or similar
products are not creditable. Four ounces
(weight) or 1⁄2 cup (volume) of yogurt is
one ounce equivalent of meats/meat
alternates.
(D) Tofu and soy products.
Commercial tofu and soy products may
be offered to meet all or part of the
meats/meat alternates component.
Noncommercial and/or nonstandardized tofu and soy products are
not creditable.
(E) Beans, peas, and lentils. Cooked
dry beans, peas, and lentils may be
offered to meet all or part of the meats/
meat alternates component. Beans, peas,
and lentils are identified in this section
and include foods such as black beans,
garbanzo beans, lentils, kidney beans,
mature lima beans, navy beans, pinto
beans, and split peas. Cooked dry beans,
peas, and lentils may be counted as
either a vegetable or as a meat alternate
but not as both in the same dish. When
offered as a meat alternate, beans, peas,
and lentils may count toward the
weekly beans, peas, and lentils
vegetable subgroup requirement, but
may not count toward the daily or
weekly vegetable component
requirements.
(F) Other meat alternates. Other meat
alternates, such as cheese and eggs, may
be used to meet all or part of the meats/
meat alternates component.
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(v) Fluid milk component. Fluid milk
must be offered daily in accordance
with paragraph (d) of this section.
(3) Grain substitutions. (i) Schools in
American Samoa, Guam, Hawaii, Puerto
Rico, and the U.S. Virgin Islands may
serve any vegetable, including
vegetables such as breadfruit, prairie
turnips, plantains, sweet potatoes, and
yams, to meet the grains component.
(ii) School food authorities and
schools that are tribally operated,
operated by the Bureau of Indian
Education, and that serve primarily
American Indian or Alaska Native
children, may serve any vegetable,
including vegetables such as breadfruit,
prairie turnips, plantains, sweet
potatoes, and yams, to meet the grains
component.
(4) Adjustments to school menus.
Schools must adjust future menu cycles
to reflect production and how often food
items are offered. Schools may need to
change the foods offerings given
students’ selections and may need to
modify recipes and other specifications
to make sure that meal requirements are
met.
(5) Standardized recipes. All schools
must develop and follow standardized
recipes. A standardized recipe is a
recipe that was tested to provide an
established yield and quantity using the
same ingredients for both measurement
and preparation methods. Standardized
recipes developed by USDA/FNS are in
the Child Nutrition Database. If a school
has its own recipes, they may seek
assistance from the State agency or
school food authority to standardize the
recipes. Schools must add any local
recipes to their local databases.
Additional information may be found in
FNS guidance.
(6) Processed foods. The Child
Nutrition Database includes a number of
processed foods. Schools may use
purchased processed foods that are not
in the Child Nutrition Database. Schools
or the State agency must add any locally
purchased processed foods to their local
database. The State agencies must
obtain the levels of calories, saturated
fat, added sugars, and sodium in the
processed foods. Additional information
may be found in FNS guidance.
(7) Traditional Indigenous foods.
Traditional Indigenous foods may credit
toward the required meal components.
Information on food crediting may be
found in FNS guidance. Schools are
encouraged to serve traditional
Indigenous foods as part of their lunch
and afterschool snack service. Per the
Agriculture Improvement Act of 2014,
as amended (25 U.S.C. 1685(b)(5))
traditional foods means food that has
traditionally been prepared and
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consumed by an American Indian tribe,
including wild game meat; fish; seafood;
marine mammals; plants; and berries.
(d) Fluid milk requirements—(1)
Types of fluid milk. (i) Schools must
offer students a variety (at least two
different options) of fluid milk at lunch
daily. All milk must be fat-free (skim) or
low-fat (1 percent fat or less). Milk with
higher fat content is not creditable. Lowfat or fat-free lactose-free and reducedlactose fluid milk may also be offered.
(ii) All fluid milk served in the
Program must be pasteurized fluid milk
which meets State and local standards
for such milk. All fluid milk must have
vitamins A and D at levels specified by
the Food and Drug Administration and
must be consistent with State and local
standards for such milk.
(iii) Milk varieties may be unflavored
or flavored, provided that unflavored
milk is offered at each meal service. By
July 1, 2025, flavored milk must contain
no more than 10 grams of added sugars
per 8 fluid ounces, or for flavored milk
sold as competitive food for middle and
high schools, 15 grams of added sugars
per 12 fluid ounces.
(2) Fluid milk substitutes for nondisability reasons. School food
authorities may offer fluid milk
substitutes to students with dietary
needs that are not disabilities. For
disability-related meal modifications,
see paragraph (m) of this section.
(i) Prior to providing a fluid milk
substitute for a non-disability reason, a
school food authority must obtain a
written request from the student’s
parent or guardian, a State licensed
healthcare professional, or a registered
dietitian that identifies the reason for
the substitute. A school food authority
choosing to offer fluid milk substitutes
for a non-disability reason is not
required to offer the specific fluid milk
substitutes requested but may offer the
fluid milk substitutes of its choice,
provided the fluid milk substitutes
offered meet the requirements of
paragraph (d)(2)(ii) of this section. A
school food authority must inform the
State agency if any schools choose to
offer fluid milk substitutes for nondisability reasons.
(ii) If a school food authority chooses
to offer one or more fluid milk
substitutes for non-disability reasons,
the fluid milk substitutes must provide,
at a minimum, the nutrients listed in the
following table. Fluid milk substitutes
must be fortified in accordance with
fortification guidelines issued by the
Food and Drug Administration.
TABLE 2 TO PARAGRAPH (d)(2)(ii)—NUTRIENT REQUIREMENTS FOR FLUID MILK SUBSTITUTES
Per cup
(8 fl. oz.)
Nutrient
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Calcium ..........................................................................................
Protein ............................................................................................
Vitamin A ........................................................................................
Vitamin D ........................................................................................
Magnesium .....................................................................................
Phosphorus ....................................................................................
Potassium .......................................................................................
Riboflavin ........................................................................................
Vitamin B–12 ..................................................................................
(iii) Expenses incurred when
providing fluid milk substitutes that
exceed program reimbursements must
be paid by the school food authority;
costs may be paid from the nonprofit
school food service account.
(iv) The fluid milk substitute approval
must remain in effect until the student’s
parent or guardian, the State licensed
healthcare professional, or the registered
dietitian revokes the request in writing,
or until the school food authority
changes its fluid milk substitute policy.
(3) Inadequate fluid milk supply. If a
school food authority cannot get a
supply of fluid milk, it can still
participate in the Program under the
following conditions:
(i) If emergency conditions
temporarily prevent a school food
authority that normally has a supply of
fluid milk from obtaining delivery of
such milk, the State agency may allow
the school food authority to serve meals
during the emergency period with an
VerDate Sep<11>2014
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276 mg.
8 g.
150 mcg. retinol activity equivalents (RAE).
2.5 mcg.
24 mg.
222 mg.
349 mg.
0.44 mg.
1.1 mcg.
alternate form of fluid milk or without
fluid milk.
(ii) If a school food authority is unable
to obtain a supply of any type of fluid
milk on a continuing basis, the State
agency may approve the service of
meals without fluid milk if the school
food authority uses an equivalent
amount of canned milk or dry milk in
the preparation of the meals. In Alaska,
American Samoa, Guam, Hawaii, Puerto
Rico, and the U.S. Virgin Islands, if a
sufficient supply of fluid milk cannot be
obtained, ‘‘fluid milk’’ includes
reconstituted or recombined fluid milk,
or as otherwise allowed by FNS through
a written exception.
(4) Restrictions on the sale of fluid
milk. A school food authority
participating in the Program, or a person
approved by a school food authority
participating in the Program, must not
directly or indirectly restrict the sale or
marketing of fluid milk (as identified in
paragraph (d)(1) of this section) at any
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time or in any place on school premises
or at any school-sponsored event.
(e) Offer versus serve for grades K
through 12. School lunches must offer
daily the five meal components
specified in the meal pattern in
paragraph (c) of this section. Under offer
versus serve, students must be allowed
to decline two components at lunch,
except that the students must select at
least 1/2 cup of either the fruit or
vegetable component. Senior high
schools (as defined by the State
educational agency) must participate in
offer versus serve. Schools below the
senior high level may participate in
offer versus serve at the discretion of the
school food authority.
(f) Dietary specifications—(1)
Calories. School lunches offered to each
age/grade group must meet, on average
over the school week, the minimum and
maximum calorie levels specified in the
following table:
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32069
TABLE 3 TO PARAGRAPH (f)(1)—NATIONAL SCHOOL LUNCH PROGRAM CALORIE RANGES
Average Daily Minimum-Maximum Calories (kcal) 1 ...................................................................
Grades K–5
Grades 6–8
Grades 9–12
550–650
600–700
750–850
1 The
average daily calories must fall within the minimum and maximum levels. Discretionary sources of calories may be added to the meal
pattern if within the dietary specifications.
(2) Saturated fat. School lunches
offered to all age/grade groups must, on
average over the school week, provide
less than 10 percent of total calories
from saturated fat.
(3) Added sugars. By July 1, 2027,
school lunches offered to all age/grade
groups must, on average over the school
week, provide less than 10 percent of
total calories from added sugars.
(4) Sodium. School lunches offered to
each age/grade group must meet, on
average over the school week, the
sodium limits specified in the following
table within the established deadlines:
TABLE 4 TO PARAGRAPH (f)(4)—NATIONAL SCHOOL LUNCH PROGRAM SODIUM LIMITS
Sodium limit: in
place through
June 30, 2027
(mg)
Age/grade group
≤1,110
≤1,225
≤1,280
lotter on DSK11XQN23PROD with RULES3
Grades K–5 ..................................................................................................................................................
Grades 6–8 ..................................................................................................................................................
Grades 9–12 ................................................................................................................................................
(g) Compliance assistance. The State
agency and school food authority must
provide technical assistance and
training to assist schools in planning
lunches that meet the meal pattern in
paragraph (c) of this section; the dietary
specifications established in paragraph
(f) of this section; and the meal pattern
requirements in paragraphs (o) through
(q) of this section, as applicable.
Compliance assistance may be offered
during trainings, onsite visits, and/or
administrative reviews.
(h) Monitoring dietary specifications.
When required by the Administrative
Review process set forth in § 210.18, the
State agency must conduct a weighted
nutrient analysis to evaluate the average
levels of calories, saturated fat, added
sugars, and sodium of the lunches
offered to students in grades K–12
during one week of the review period.
The nutrient analysis must be
conducted in accordance with the
procedures established in paragraph
(i)(3) of this section. If the results of the
nutrient analysis indicate that school
lunches do not meet the specifications
for calories, saturated fat, added sugars,
and sodium specified in paragraph (f) of
this section, the State agency or school
food authority must provide technical
assistance and require the reviewed
school to take corrective action to meet
the requirements.
(i) Nutrient analyses of school
meals—(1) Conducting the nutrient
analysis. Any nutrient analysis, whether
conducted by the State agency under
§ 210.18 or by the school food authority,
must be performed in accordance with
the procedures established in paragraph
(i)(3) of this section. The purpose of the
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Jkt 262001
nutrient analysis is to determine the
average levels of calories, saturated fat,
added sugars, and sodium in the meals
offered to each age grade group over a
school week. The weighted nutrient
analysis must be performed as required
by FNS guidance.
(2) Software elements—(i) The Child
Nutrition Database. The nutrient
analysis is based on the USDA Child
Nutrition Database. This database is part
of the software used to do a nutrient
analysis. Software companies or others
developing systems for schools may
contact FNS for more information about
the database.
(ii) Software evaluation. FNS or an
FNS designee evaluates any nutrient
analysis software before it may be used
in schools. FNS or its designee
determines if the software, as submitted,
meets the minimum requirements. The
approval of software does not mean that
FNS or USDA endorses it. The software
must be able to perform a weighted
average analysis after the basic data is
entered. The combined analysis of the
lunch and breakfast programs is not
allowed.
(3) Nutrient analysis procedures—(i)
Weighted averages. The nutrient
analysis must include all foods offered
as part of the reimbursable meals during
one week within the review period.
Foods items are included based on the
portion sizes and serving amounts. They
are also weighted based on their
proportionate contribution to the meals
offered. This means that food items
offered more frequently are weighted
more heavily than those not offered as
frequently. The weighted nutrient
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Sodium limit: must
be implemented
by July 1, 2027
(mg)
≤935
≤1,035
≤1,080
analysis must be performed as required
by FNS guidance.
(ii) Analyzed nutrients. The analysis
determines the average levels of
calories, saturated fat, added sugars, and
sodium in the meals offered over a
school week. It includes all food items
offered by the reviewed school over a
one-week period.
(4) Comparing the results of the
nutrient analysis. Once the procedures
in paragraph (i)(3) of this section are
completed, State agencies must compare
the results of the analysis to the calorie,
saturated fat, added sugars, and sodium
levels established in § 210.10 or § 220.8
of this chapter, as appropriate, for each
age/grade group to evaluate the school’s
compliance with the dietary
specifications.
(j) Responsibility for monitoring meal
requirements. Compliance with the
meal requirements in paragraph (b) of
this section, including the dietary
specifications, and paragraphs (o)
through (q) of this section, as applicable,
will be monitored by the State agency
through administrative reviews
authorized in § 210.18.
(k) * * *
(2) Opportunity to select. Schools that
choose to offer a variety of reimbursable
lunches, or provide multiple serving
lines, must make all required meal
components available to all students, on
every lunch line, in at least the
minimum required amounts.
*
*
*
*
*
(m) Modifications and variations in
reimbursable meals and afterschool
snacks—(1) Modifications for disability
reasons. School food authorities must
make meal modifications, including
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substitutions in lunches and afterschool
snacks, for children with a disability
and whose disability restricts their diet.
The modification requested must be
related to the disability or limitations
caused by the disability and must be
offered at no additional cost to the child
or household.
(i) In order to receive Federal
reimbursement when a modified meal
does not meet the meal pattern
requirements specified in this section,
the school food authority must obtain
from the household a written medical
statement signed by a State licensed
healthcare professional. By July 1, 2025,
school food authorities must also accept
a medical statement signed by a
registered dietitian. The medical
statement must provide sufficient
information about the child’s dietary
restrictions, such as foods to be omitted
and recommended alternatives, if
appropriate. Modified meals that meet
the meal pattern requirements in this
section are reimbursable with or
without a medical statement.
(ii) School food authorities must
ensure that parents, guardians, and
children have notice of the procedure
for requesting meal modifications for
disabilities and the process for
procedural safeguards related to meal
modifications for disabilities. See
§§ 15b.6(b) and 15b.25 of this title.
(iii) Expenses incurred when making
meal modifications that exceed program
reimbursement rates must be paid by
the school food authority; costs may be
paid from the nonprofit food service
account.
(2) Variations for non-disability
reasons. School food authorities should
consider children’s dietary preferences
when planning and preparing meals and
afterschool snacks. Any variations must
be consistent with the meal pattern
requirements specified under this
section. Expenses incurred from meal
pattern variations that exceed program
reimbursement rates must be paid by
the school food authority; costs may be
paid from the nonprofit food service
account.
(3) Exceptions for natural disasters. If
there is a natural disaster or other
catastrophe, FNS may temporarily allow
school food authorities to serve meals
for reimbursement that do not meet the
requirements in this section.
*
*
*
*
*
(o) Afterschool snacks. Eligible
schools operating afterschool care
programs may be reimbursed for one
afterschool snack served to a child (as
defined in § 210.2) per day.
(1) Eligible schools means schools
that:
(i) Operate the National School Lunch
Program; and
(ii) Sponsor afterschool care programs
as defined in § 210.2.
(2) Afterschool snack requirements for
K–12 children—(i) Afterschool snacks
served to K through 12 children. Schools
serving afterschool snacks to K–12
children must serve the meal
components and quantities required in
the snack meal pattern established for
the Child and Adult Care Food Program,
under § 226.20 of this chapter. In
addition, schools serving afterschool
snacks to K–12 children must comply
with the requirements set forth in
paragraphs (a), (c)(3) and (4), (d)(2)
through (4), (g), and (m) of this section,
as applicable, and § 226.20(d) of this
chapter.
(ii) Afterschool snack meal pattern
table for K through 12 children. Through
June 30, 2025, afterschool snacks must
either follow the requirements outlined
in the following table or must contain
two different components from the
following four: fluid milk, meats/meat
alternates, vegetable or fruit, and/or
grains. By July 1, 2025, the minimum
amounts of meal components to be
served at afterschool snack are as
follows:
TABLE 5 TO PARAGRAPH (o)(2)(ii)—
AFTERSCHOOL SNACK MEAL PATTERN FOR K–12 CHILDREN
[Ages 6–18]
[Select two of the five components for a
reimbursable snack]
Meal components 1
Fluid milk 3 .................
Meats/meat alternates 4.
Vegetables 5 ..............
Minimum quantities 2
8 fluid ounces.
1 ounce equivalent.
⁄ cup.
34
TABLE 5 TO PARAGRAPH (o)(2)(ii)—
AFTERSCHOOL SNACK MEAL PATTERN FOR K–12 CHILDREN—Continued
[Ages 6–18]
[Select two of the five components for a
reimbursable snack]
Meal components 1
Fruits 5 .......................
Grains 6 .....................
Minimum quantities 2
⁄ cup.
1 ounce equivalent.
34
1 Must serve two of the five components for
a reimbursable afterschool snack. Only one of
the two components may be a beverage.
2 May need to serve larger portions to children ages 13 through 18 to meet their nutritional needs.
3 Must be fat-free (skim) or low-fat (1 percent fat or less). Milk may be unflavored or flavored.
4 Alternate protein products must meet the
requirements in appendix A to part 226 of this
chapter. Yogurt must contain no more than 12
grams of added sugars per 6 ounces (2 grams
of added sugars per ounce). Information on
crediting meats/meat alternates may be found
in FNS guidance.
5 Juice must be pasteurized, full-strength
juice. No more than half of the weekly fruit or
vegetable offerings may be in the form of
juice.
6 At least 80 percent of grains offered weekly (by ounce equivalents) must be whole grainrich, as defined in § 210.2, and the remaining
grains items offered must be enriched. Grainbased desserts may not be used to meet the
grains requirement. Breakfast cereal must
have no more than 6 grams of added sugars
per dry ounce. Information on crediting grain
items may be found in FNS guidance.
(3) Afterschool snack requirements for
preschoolers—(i) Afterschool snacks
served to preschoolers. Schools serving
afterschool snacks to preschoolers must
serve the food components and
quantities required in the snack meal
pattern established for the Child and
Adult Care Food Program, under
§ 226.20 of this chapter. In addition,
schools serving afterschool snacks to
preschoolers must comply with the
requirements set forth in paragraphs (a),
(c)(3) and (4), (d)(2) through (4), (g), and
(m) of this section, as applicable, and
§ 226.20(d) of this chapter.
(ii) Preschooler afterschool snack
meal pattern table. The minimum
amounts of food components to be
served at afterschool snack are as
follows:
TABLE 5 TO PARAGRAPH (o)(3)(ii)—AFTERSCHOOL SNACK MEAL PATTERN FOR PRESCHOOLERS
[Select two of the five components for a reimbursable snack]
lotter on DSK11XQN23PROD with RULES3
Minimum quantities
Meal components 1
Ages 1–2
Fluid milk 2 .........................................................
Meats/meat alternates 3 .....................................
Vegetables 4 .......................................................
Fruits 4 ................................................................
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Ages 3–5
4 fluid ounces ...................................................
⁄ ounce equivalent .........................................
1⁄2 cup ...............................................................
1⁄2 cup ...............................................................
12
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4 fluid ounces.
⁄ ounce equivalent.
1⁄2 cup.
1⁄2 cup.
12
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32071
TABLE 5 TO PARAGRAPH (o)(3)(ii)—AFTERSCHOOL SNACK MEAL PATTERN FOR PRESCHOOLERS—Continued
[Select two of the five components for a reimbursable snack]
Minimum quantities
Meal components 1
Ages 1–2
Grains 5 ..............................................................
Ages 3–5
⁄ ounce equivalent .........................................
12
⁄ ounce equivalent.
12
1 Must
serve two of the five components for a reimbursable afterschool snack. Only one of the two components may be a beverage.
2 Must be unflavored whole milk for children age one. Must be unflavored low-fat (1 percent) or unflavored fat-free (skim) milk for children two
through five years old.
3 Alternate protein products must meet the requirements in appendix A to part 226 of this chapter. Through September 30, 2025, yogurt must
contain no more than 23 grams of total sugars per 6 ounces. By October 1, 2025, yogurt must contain no more than 12 grams of added sugars
per 6 ounces (2 grams of added sugars per ounce). Information on crediting meats/meat alternates may be found in FNS guidance.
4 Pasteurized full-strength juice may only be offered to meet the vegetable or fruit requirement at one meal, including snack, per day.
5 At least one serving per day, across all eating occasions, must be whole grain-rich. Grain-based desserts do not count toward meeting the
grains requirement. Through September 30, 2025, breakfast cereals must contain no more than 6 grams of total sugars per dry ounce. By October 1, 2025, breakfast cereals must contain no more than 6 grams of added sugars per dry ounce.
(4) Afterschool snack requirements for
infants—(i) Afterschool snacks served to
infants. Schools serving afterschool
snacks to infants ages birth through 11
months must serve the meal
components and quantities required in
the snack meal pattern established for
the Child and Adult Care Food Program,
under § 226.20 of this chapter. In
addition, schools serving afterschool
snacks to infants must comply with the
requirements set forth in paragraphs (a),
(c)(3) and (4), (g), and (m) of this
section, as applicable, and § 226.20(d) of
this chapter.
(ii) Infant afterschool snack meal
pattern table. The minimum amounts of
meal components to be served at snack
are as follows:
TABLE 6 TO PARAGRAPH (o)(4)(II)—INFANT AFTERSCHOOL SNACK MEAL PATTERN
Birth through 5 months
6 through 11 months
4–6 fluid ounces of breast milk 1 or formula 2 ..........................
2–4 fluid ounces breast milk 1 or formula; 2 and
0–1⁄2 ounce equivalent bread; 3 4 or
0–1⁄4 ounce equivalent crackers; 3 4 or
0–1⁄2 ounce equivalent infant cereal; 2 4 or
0–1⁄4 ounce equivalent ready-to-eat breakfast cereal; 3 4 5 6and
0–2 tablespoons vegetable or fruit, or a combination of both.6 7
1 Breast milk or formula, or portions of both, must be served; however, it is recommended that breast milk be served from birth through 11
months. For some breastfed infants who regularly consume less than the minimum amount of breast milk per feeding, a serving of less than the
minimum amount of breast milk may be offered, with additional breast milk offered at a later time if the infant will consume more.
2 Infant formula and dry infant cereal must be iron-fortified.
3 A serving of grains must be whole grain-rich, enriched meal, enriched flour, bran, or germ.
4 Information on crediting grain items may be found in FNS guidance.
5 Through September 30, 2025, breakfast cereals must contain no more than 6 grams of total sugars per dry ounce. By October 1, 2025,
breakfast cereals must contain no more than 6 grams of added sugars per dry ounce.
6 A serving of this component is required when the infant is developmentally ready to accept it.
7 Fruit and vegetable juices must not be served.
(5) Monitoring afterschool snacks.
Compliance with the requirements of
this paragraph (o)(5) is monitored by the
State agency as part of the
Administrative Review conducted
under § 210.18. If snacks offered do not
meet the requirements of this paragraph,
the State agency or school food
authority must provide technical
assistance and require corrective action
and when applicable, must take fiscal
action, as authorized in §§ 210.18(l) and
210.19(c).
(p) Lunch requirements for
preschoolers—(1) Lunches served to
preschoolers. Schools serving lunches to
preschoolers under the National School
Lunch Program must serve the meal
components and quantities required in
the lunch meal pattern established for
the Child and Adult Care Food Program,
under § 226.20(a), (c)(2), and (d) of this
chapter. In addition, schools serving
lunches to this age group must comply
with the requirements set forth in
paragraphs (a), (c)(3) and (4), (d)(2)
through (4), (g), and (k) through (m) of
this section.
(2) Preschooler lunch meal pattern
table. The minimum amounts of meal
components to be served at lunch are as
follows:
TABLE 7 TO PARAGRAPH (p)(2)—PRESCHOOL LUNCH MEAL PATTERN
[Select the appropriate components for a reimbursable meal]
lotter on DSK11XQN23PROD with RULES3
Minimum quantities
Meal components and food items 1
Ages 1–2
Fluid milk ...........................................................
Meats/meat alternates 4 .....................................
Vegetables 5 .......................................................
Fruits 5 ................................................................
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Ages 3–5
4 fluid ounces 2 .................................................
1 ounce equivalent ...........................................
1⁄8 cup ...............................................................
1⁄8 cup ...............................................................
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6 fluid ounces 3.
11⁄2 ounce equivalents.
1⁄4 cup.
1⁄4 cup.
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TABLE 7 TO PARAGRAPH (p)(2)—PRESCHOOL LUNCH MEAL PATTERN—Continued
[Select the appropriate components for a reimbursable meal]
Minimum quantities
Meal components and food items 1
Ages 1–2
Grains 6 ..............................................................
Ages 3–5
⁄ ounce equivalent .........................................
12
⁄ ounce equivalent.
12
1 Must
serve all five components for a reimbursable meal.
2 Must serve unflavored whole milk to children age 1.
3 Must serve unflavored milk to children 2 through 5 years old. The milk must be fat-free, skim, low-fat, or 1 percent or less.
4 Alternate protein products must meet the requirements in appendix A to part 226 of this chapter. Through September 30, 2025, yogurt must
contain no more than 23 grams of total sugars per 6 ounces. By October 1, 2025, yogurt must contain no more than 12 grams of added sugars
per 6 ounces (2 grams of added sugars per ounce). Information on crediting meats/meat alternates may be found in FNS guidance.
5 Juice must be pasteurized. Full-strength juice may only be offered to meet the vegetable or fruit requirement at one meal or snack, per day.
Vegetables may be offered to meet the entire fruits requirement. When two vegetables are served at lunch or supper, two different kinds of vegetables must be served.
6 Must serve at least one whole grain-rich serving, across all eating occasions, per day. Grain-based desserts may not be offered to meet the
grains requirement. Through September 30, 2025, breakfast cereals must contain no more than 6 grams of total sugars per dry ounce. By October 1, 2025, breakfast cereal must have no more than 6 grams of added sugars per dry ounce. Information on crediting grain items may be
found in FNS guidance.
(q) Lunch requirements for infants—
(1) Lunches served to infants. Schools
serving lunches to infants ages birth
through 11 months under the National
School Lunch Program must serve the
meal components and quantities
required in the lunch meal pattern
established for the Child and Adult Care
Food Program, under § 226.20(a), (b),
and (d) of this chapter. In addition,
schools serving lunches to infants must
comply with the requirements set forth
in paragraphs (a), (c)(3) and (4), (g), (l),
and (m) of this section.
(2) Infant lunch meal pattern table.
The minimum amounts of meal
components to be served at lunch are as
follows:
lotter on DSK11XQN23PROD with RULES3
TABLE 8 TO PARAGRAPH (q)(2)—
INFANT LUNCH MEAL PATTERN
Birth through 5
months
6 through 11 months
4–6 fluid
ounces
breast milk 1
or formula 2.
6–8 fluid ounces breast
milk 1 or formula; 2 and
0–1⁄2 ounce equivalent infant
cereal; 2 3 or
0–4 tablespoons meat, fish,
poultry, whole egg, cooked
dry beans, peas, or lentils;
or
0–2 ounces of cheese; or
0–4 ounces (volume) of cottage cheese; or
0–4 ounces or 1⁄2 cup of yogurt; 4 or a combination of
the above; 5 and
■ d. Revise and republish paragraph
TABLE 8 TO PARAGRAPH (q)(2)—INFANT LUNCH MEAL PATTERN—Con- (f)(3);
■ e. Remove paragraph (g);
tinued
Birth through 5
months
1 Breast milk or formula, or portions of both,
must be served; however, it is recommended
that breast milk be served from birth through
11 months. For some breastfed infants who
regularly consume less than the minimum
amount of breast milk per feeding, a serving of
less than the minimum amount of breast milk
may be offered, with additional breast milk offered at a later time if the infant will consume
more.
2 Infant formula and dry infant cereal must
be iron-fortified.
3 Information on crediting grain items may
be found in FNS guidance.
4 Through September 30, 2025, yogurt must
contain no more than 23 grams of total sugars
per 6 ounces. By October 1, 2025, yogurt
must contain no more than 12 grams of added
sugars per 6 ounces (2 grams of added sugars per ounce).
5 A serving of this component is required
when the infant is developmentally ready to
accept it.
6 Fruit and vegetable juices must not be
served.
(r) Severability. If any provision of
this section is held to be invalid or
unenforceable by its terms, or as applied
to any person or circumstances, it shall
be severable from this section and not
affect the remainder thereof. In the
event of such holding of invalidity or
unenforceability of a provision, the meal
pattern requirement covered by that
provision reverts to the version that
immediately preceded the invalidated
provision.
■
■
■
20:11 Apr 24, 2024
Jkt 262001
6 through 11 months
0–2 tablespoons vegetable
or fruit, or a combination
of both.5 6
■
VerDate Sep<11>2014
f. Redesignate paragraphs (h) through
(m) as paragraphs (g) through (l);
■ g. Revise and republish newly
redesignated paragraphs (g)(2)(i) and (ii)
and (h);
■ h. Revise newly redesignated
paragraph (l); and
■ i. Remove paragraph (n).
The revisions and addition read as
follows:
■
9. In § 210.11:
a. Revise paragraph (a)(3);
b. Add paragraph (a)(7);
c. Revise paragraph (f)(2);
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§ 210.11 Competitive food service and
standards.
(a) * * *
(3) Entre´e item means an item that is
intended as the main dish in a
reimbursable meal and is either:
(i) A combination food of a meat/meat
alternate and a grain;
(ii) A combination food of a vegetable
or fruit and a meat/meat alternate;
(iii) A meat/meat alternate alone with
the exception of yogurt, low-fat or
reduced fat cheese, nuts, seeds and nut
or seed butters, and meat snacks (such
as dried beef jerky); or
(iv) A grain only entre´e that is served
as the main dish in a school breakfast.
*
*
*
*
*
(7) Bean dip means, for the purpose
of competitive food standards, a spread
made from ground pulses (beans, peas,
and/or lentils), along with one or more
of the following optional ingredients:
(i) Ground nut/seed butter (such as
tahini [ground sesame] or peanut
butter).
(ii) Vegetable oil (such as olive oil,
canola oil, soybean oil).
(iii) Seasoning (such as salt, citric
acid).
(iv) Vegetables and juice for flavor
(such as olives, roasted pepper, garlic,
lemon juice).
(v) For manufactured bean dip,
contains ingredients necessary as
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preservatives and/or to maintain
freshness.
*
*
*
*
*
(f) * * *
(2) Exemptions to the total fat
requirement. (i) Seafood with no added
fat is exempt from the total fat
requirement, but subject to the saturated
fat, sugar, calorie, and sodium
standards.
(ii) Bean dip (as defined in paragraph
(a)(7) of this section), is exempt from the
total fat standard, but subject to the
saturated fat, sugar, calorie, and sodium
standards. This exemption does not
apply to combination products that
contain bean dip with other ingredients
such as crackers, pretzels, pita,
manufactured, snack-type vegetable
and/or fruit sticks.
(3) Exemptions to the total fat and
saturated fat requirements. (i) Reduced
fat cheese and part skim mozzarella
cheese are exempt from the total fat and
saturated fat standards, but subject to
the sugar, calorie, and sodium
standards. This exemption does not
apply to combination foods.
(ii) Nuts and seeds and nut/seed
butters are exempt from the total fat and
saturated fat standards, but subject to
the sugar, calorie, and sodium
standards. This exemption does not
apply to combination products that
contain nuts, seeds, or nut/seed butters
with other ingredients, such as peanut
butter and crackers, trail mix, or
chocolate covered peanuts.
(iii) Products that consist of only
dried fruit with nuts and/or seeds with
no added nutritive sweeteners or fat are
exempt from the total fat, saturated fat,
and sugar standards, but subject to the
calorie and sodium standards.
(iv) Whole eggs with no added fat are
exempt from the total fat and saturated
fat standards, but subject to the calorie
and sodium standards.
(g) * * *
(2) * * *
(i) Dried whole fruits or vegetables;
dried whole fruit or vegetable pieces;
and dehydrated fruits or vegetables with
no added nutritive sweeteners are
exempt from the sugar standard, but
subject to the total fat, saturated fat,
calorie, and sodium standards. There is
also an exemption from the sugar
standard for dried fruits with nutritive
sweeteners that are required for
processing and/or palatability purposes.
(ii) Products that consist of only dried
fruit with nuts and/or seeds with no
added nutritive sweeteners or fat are
exempt from the total fat, saturated fat,
and sugar standards, but subject to the
calorie and sodium standards.
(h) Calorie and sodium content for
snack items and side dishes sold as
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competitive foods. Snack items and side
dishes sold as competitive foods must
have not more than 200 calories and 200
mg of sodium per item as packaged or
served, including the calories and
sodium contained in any added
accompaniments such as butter, cream
cheese, salad dressing, etc., and must
meet all of the other nutrient standards
in this section. These snack items and
side dishes must have not more than
200 calories and 200 mg of sodium per
item as packaged or served.
*
*
*
*
*
(l) Beverages—(1) Elementary schools.
Allowable beverages for elementary
school-aged students are limited to:
(i) Plain water or plain carbonated
water (no size limit);
(ii) Milk and fluid milk substitutes
that meet the requirements outlined in
§ 210.10(d)(1) and (2) (no more than 8
fluid ounces); and
(iii) One hundred (100) percent fruit/
vegetable juice, and 100 percent fruit/
vegetable juice diluted with water, with
or without carbonation and with no
added sweeteners (no more than 8 fluid
ounces).
(2) Middle schools. Allowable
beverages for middle school-aged
students are limited to:
(i) Plain water or plain carbonated
water (no size limit);
(ii) Milk and fluid milk substitutes
that meet the requirements outlined in
§ 210.10(d)(1) and (2) (no more than 12
fluid ounces); and
(iii) One hundred (100) percent fruit/
vegetable juice, and 100 percent fruit/
vegetable juice diluted with water, with
or without carbonation and with no
added sweeteners (no more than 12
fluid ounces).
(3) High schools. Allowable beverages
for high school-aged students are
limited to:
(i) Plain water or plain carbonated
water (no size limit);
(ii) Milk and fluid milk substitutes
that meet the requirements outlined in
§ 210.10(d)(1) and (2) (no more than 12
fluid ounces);
(iii) One hundred (100) percent fruit/
vegetable juice, and 100 percent fruit/
vegetable juice diluted with water, with
or without carbonation and with no
added sweeteners (no more than 12
fluid ounces);
(iv) Calorie-free, flavored water, with
or without carbonation (no more than 20
fluid ounces);
(v) Other beverages that are labeled to
contain less than 5 calories per 8 fluid
ounces, or less than or equal to 10
calories per 20 fluid ounces (no more
than 20 fluid ounces); and
(vi) Other beverages that are labeled to
contain no more than 40 calories per 8
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fluid ounces or 60 calories per 12 fluid
ounces (no more than 12 fluid ounces).
■ 10. In § 210.12, revise and republish
paragraph (e) to read as follows:
§ 210.12 Student, parent, and community
involvement.
*
*
*
*
*
(e) Local school wellness policies.
Local educational agencies must comply
with the provisions of § 210.31(d)
regarding student, parent, and
community involvement in the
development, implementation, and
periodic review and update of the local
school wellness policy.
■ 11. In § 210.14:
■ a. Revise and republish paragraphs (e)
introductory text and (e)(5)(ii)(D);
■ b. Remove paragraph (e)(6)(iii); and
■ c. Revise and republish paragraph (f)
introductory text.
The revisions read as follows:
§ 210.14
Resource management.
*
*
*
*
*
(e) Pricing paid lunches. For each
school year, school food authorities
must establish prices for paid lunches in
accordance with this paragraph (e).
*
*
*
*
*
(5) * * *
(ii) * * *
(D) Any in-kind contributions
converted to direct cash expenditures;
and
*
*
*
*
*
(f) Revenue from nonprogram foods.
School food authorities must ensure that
the revenue generated from the sale of
nonprogram foods complies with the
requirements in this paragraph (f).
*
*
*
*
*
■ 12. In § 210.15, revise and republish
paragraph (b)(9) to read as follows:
§ 210.15
Reporting and recordkeeping.
*
*
*
*
*
(b) * * *
(9) Records to document compliance
with the local school wellness policy
requirements as set forth in § 210.31(f).
■ 13. In § 210.18, revise and republish
paragraphs (g)(2)(i) introductory text,
(g)(2)(i)(B)(1) through (3), (h)(2)(v) and
(x), (l)(2)(i), (l)(2)(ii)(A), and (l)(2)(iii)
introductory text to read as follows:
§ 210.18
Administrative reviews.
*
*
*
*
*
(g) * * *
(2) * * *
(i) Meal components and quantities.
For each school selected for review, the
State agency must complete a USDAapproved menu tool, review
documentation, and observe the meal
service to ensure that meals offered by
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the reviewed schools meet the meal
patterns for each program. To review
this area, the State agency must:
*
*
*
*
*
(B) * * *
(1) Observe a significant number of
program meals, as described in the FNS
Administrative Review Manual, at each
serving line and review the
corresponding documentation to
determine whether all reimbursable
meal service lines offer all of the
required meal components/items and
quantities for the age/grade groups being
served, as required under § 210.10, as
applicable, and § 220.8 of this chapter,
as applicable. Observe meals at the
beginning, middle and end of the meal
service line, and confirm that signage or
other methods are used to assist
students in identifying the reimbursable
meal. If the State agency identifies
missing components or inadequate
quantities prior to the beginning of the
meal service, it must inform the school
food authority and provide an
opportunity to make corrections.
Additionally, if visual observation
suggests that quantities offered are
insufficient or excessive, the State
agency must require the reviewed
schools to provide documentation
demonstrating that the required
amounts of each component were
available for service for each day of the
review period.
(2) Observe a significant number of
the program meals counted at the point
of service for each type of serving line
to determine whether the meals selected
by the students contain the meal
components and food quantities
required for a reimbursable meal under
§ 210.10, as applicable, and § 220.8 of
this chapter, as applicable.
(3) If Offer versus Serve is in place,
observe whether students select at least
three meal components at lunch and at
least three food items at breakfasts, and
that the lunches and breakfasts include
at least 1⁄2 cup of fruits or vegetables.
*
*
*
*
*
(h) * * *
(2) * * *
(v) Water. The State agency must
ensure that plain potable water is
available and accessible to children at
no charge as specified in
§ 210.10(a)(1)(i) and § 220.8(a)(1) of this
chapter.
*
*
*
*
*
(x) Local school wellness. The State
agency must ensure the local
educational agency complies with the
local school wellness requirements set
forth in § 210.31.
*
*
*
*
*
(l) * * *
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(2) * * *
(i) For missing meal components or
missing production records cited under
paragraph (g)(2) of this section, the State
agency must apply fiscal action.
(ii) * * *
(A) If the meals contain insufficient
quantities of the required meal
components, the deficient meals may be
disallowed and reclaimed.
*
*
*
*
*
(iii) For repeated violations of the
dietary specifications cited under
paragraph (g)(2)(ii) of this section, the
State agency has discretion to apply
fiscal action to the reviewed school as
follows:
*
*
*
*
*
■ 14. In § 210.19:
■ a. Revise and republish paragraph
(c)(4); and
■ b. Revise paragraph (f).
The revisions read as follows:
§ 210.19
Additional responsibilities.
*
*
*
*
*
(c) * * *
(4) Interest charge. If an agreement
cannot be reached with the State agency
for payment of its debts or for offset of
debts on its current Letter of Credit,
interest will be charged against the State
agency from the date the demand letter
was sent, at the rate established by the
Secretary of Treasury.
*
*
*
*
*
(f) Cooperation with the Child and
Adult Care Food Program. On an annual
basis, the State agency must provide the
State agency which administers the
Child and Adult Care Food Program
with a list of all schools in the State
participating in the National School
Lunch Program in which 50 percent or
more of enrolled children have been
determined eligible for free or reduced
price meals as of the last operating day
of the previous October, or other month
specified by the State agency. The lists
must be provided by February 1 of each
year or, if data is based on a month
other than October, within 90 calendar
days following the end of the month
designated by the State agency. The
State agency may provide updated free
and reduced price enrollment data on
individual schools to the State agency
which administers the Child and Adult
Care Food Program only when unusual
circumstances render the initial data
obsolete. In addition, the State agency
must provide the current list, upon
request, to sponsoring organizations of
day care homes participating in the
Child and Adult Care Food Program.
§ 210.20
■
[Amended]
15. In § 210.20:
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a. Remove paragraphs (a)(6) and (7);
b. Redesignate paragraphs (a)(8) and
(9) as paragraphs (a)(6) and (7),
respectively;
■ c. Remove paragraph (b)(10); and
■ d. Redesignate paragraphs (b)(11)
through (14) as paragraphs (b)(10)
through (13), respectively.
■ 16. In § 210.21, revise paragraphs (d)
and (g)(1) to read as follows:
■
■
§ 210.21
Procurement.
*
*
*
*
*
(d) Buy American—(1) Definitions.
For the purpose of this paragraph (d):
(i) Domestic commodity or product
means:
(A) An agricultural commodity that is
produced in the United States; and
(B) A food product that is processed
in the United States substantially using
agricultural commodities that are
produced in the United States.
(ii) Substantially using agriculture
commodities that are produced in the
United States means over 51 percent of
a food product must consist of
agricultural commodities that were
grown domestically.
(2) In general. Subject to paragraph
(d)(4) of this section, a school food
authority must purchase, to the
maximum extent practicable, domestic
commodities or products.
(3) Required language. School food
authorities must include language
requiring the purchase of foods that
meet the Buy American requirements in
paragraph (d)(1) of this section in all
procurement procedures, solicitations,
and contracts.
(4) Limitations. Paragraphs (d)(2) and
(3) of this section apply only to:
(i) A school food authority located in
the contiguous United States; and
(ii) A purchase of domestic
commodity or product for the school
lunch program under this part.
(5) Exceptions. The purchase of foods
not meeting the definition in paragraph
(d)(1) of this section is only permissible
when the following criteria are met:
(i) The school food authority
determines that one of the following
limited exceptions is met:
(A) The product is listed in the
Federal Acquisitions Regulations (FAR)
at 48 CFR 25.104 and/or is not produced
or manufactured in the U.S. in sufficient
and reasonably available quantities of a
satisfactory quality; or
(B) Competitive bids reveal the cost of
a United States product is significantly
higher than the non-domestic product.
(ii) Non-domestic food purchases
(those that do not meet the definition of
domestic commodity or product, as
defined in paragraph (d)(1) of this
section) must not exceed the following
caps by the established deadlines:
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(A) By July 1, 2025, non-domestic
food purchases must not exceed 10
percent of total annual commercial food
costs that a school food authority
purchases per school year.
(B) By July 1, 2028, non-domestic
food purchases must not exceed 8
percent of total annual commercial food
costs that a school food authority
purchases per school year.
(C) By July 1, 2031, non-domestic
food purchases must not exceed 5
percent of total annual commercial food
costs that a school food authority
purchases per school year.
(iii) School food authorities must
maintain documentation, except when
the item purchased is found on the FAR
at 48 CFR 25.104 when using an
exception under paragraph (d)(5)(i) of
this section.
(iv) School food authorities must
maintain documentation, to
demonstrate that when using an
exception under paragraph (d)(5)(i) of
this section their non-domestic food
purchases do not exceed the annual
threshold specified in paragraph
(d)(5)(ii) of this section.
(6) Harvested fish. To meet the
definition of a domestic commodity or
product, harvested fish must meet the
following requirements:
(i) Farmed fish must be harvested
within the United States or any territory
or possession of the United States; and
(ii) Wild caught fish must be
harvested within the Exclusive
Economic Zone of the United States or
by a United States flagged vessel.
(7) Applicability to Hawaii. Paragraph
(d)(2) of this section applies to school
food authorities in Hawaii with respect
to domestic commodities or products
that are produced in Hawaii in
sufficient quantities to meet the needs of
meals provided under the school lunch
program under this part.
(8) Temporary accommodation. For
school food authorities that demonstrate
they cannot meet the threshold, State
agencies may provide an
accommodation for temporary relief
from the requirement as the State
agency works with the school food
authority to increase domestic
purchases.
*
*
*
*
*
(g) * * *
(1) A school food authority
participating in the Program, as well as
State agencies making purchases on
behalf of such school food authorities,
may apply a geographic preference
when procuring unprocessed locally
grown or locally raised agricultural
products, including the use of ‘‘locally
grown’’, ‘‘locally raised’’, or ‘‘locally
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caught’’ as procurement specifications
or selection criteria for unprocessed or
minimally processed food items. When
utilizing the geographic preference to
procure such products, the school food
authority making the purchase or the
State agency making purchases on
behalf of such school food authorities
have the discretion to determine the
local area to which the geographic
preference option will be applied, so
long as there are an appropriate number
of qualified firms able to compete;
*
*
*
*
*
■ 17. In § 210.23, revise and republish
paragraph (a) to read as follows:
§ 210.23
Other responsibilities.
(a) Free and reduced price lunches
and afterschool snacks. State agencies
and school food authorities must ensure
that lunches and afterschool snacks are
made available free or at a reduced price
to all children who are determined by
the school food authority to be eligible
for such benefits. The determination of
a child’s eligibility for free or reduced
price lunches and afterschool snacks
must made in accordance with part 245
of this chapter.
*
*
*
*
*
■ 18. In § 210.29, revise paragraph (d)(3)
introductory text to read as follows:
§ 210.29
Management evaluations.
*
*
*
*
*
(d) * * *
(3) School food authority appeal of
FNS findings. When administrative or
follow-up review activity conducted by
FNS in accordance with the provisions
of paragraph (d)(2) of this section results
in the denial of all or part of a Claim for
Reimbursement or withholding of
payment, a school food authority may
appeal the FNS findings by filing a
written request with the Food and
Nutrition Service in accordance with
the appeal procedures specified in this
paragraph (d)(3):
*
*
*
*
*
■ 19. Revise and republish § 210.30 to
read as follows:
§ 210.30 School nutrition program
professional standards.
(a) General. School food authorities
that operate the National School Lunch
Program, or the School Breakfast
Program (part 220 of this chapter), must
establish and implement professional
standards for school nutrition program
directors, managers, and staff, as
defined in § 210.2.
(b) Minimum standards for all school
nutrition program directors. Each school
food authority must ensure that all
newly hired school nutrition program
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directors meet minimum hiring
standards and ensure that all new and
existing directors have completed the
minimum annual training/education
requirements for school nutrition
program directors, as set forth below:
(1) Hiring standards. All school
nutrition program directors hired on or
after July 1, 2015, must meet the
following minimum educational
requirements, as applicable:
(i) School nutrition program directors
with local educational agency
enrollment of 2,499 students or fewer.
Directors must meet the requirements in
paragraph (b)(1)(i)(A), (B), (C), or (D) of
this section. However, a State agency
may approve a school food authority to
use the nonprofit school food service
account to pay the salary of a school
nutrition program director who does not
meet the hiring standards herein so long
as the school food authority is
complying with a State agencyapproved plan to ensure the director
will meet the requirements.
(A) A bachelor’s degree, or equivalent
educational experience, as determined
by the State agency, with an academic
major or concentration in food and
nutrition, food service management,
dietetics, family and consumer sciences,
nutrition education, culinary arts,
business, or a related field;
(B) A bachelor’s degree, or equivalent
educational experience, as determined
by the State agency, with any academic
major or area of concentration, and
either a State-recognized certificate for
school nutrition directors, or at least one
year of relevant food service experience.
At the discretion of the State agency,
and on an individual basis, documented
relevant food service experience may be
unpaid;
(C) An associate’s degree, or
equivalent educational experience, as
determined by the State agency, with an
academic major or area of concentration
in food and nutrition, food service
management, dietetics, family and
consumer sciences, nutrition education,
culinary arts, business, or a related field
and at least one year of relevant food
service experience. At the discretion of
the State agency, and on an individual
basis, documented relevant food service
experience may be unpaid; or
(D) A high school diploma or
equivalency (such as the general
educational development diploma), and
at least three years of relevant food
service experience. At the discretion of
the State agency, and on an individual
basis, documented relevant food service
experience may be unpaid. Directors
hired under this criterion are strongly
encouraged to work toward attaining an
associate’s degree in an academic major
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in at least one of the fields listed in
paragraph (b)(1)(i)(C) of this section.
(ii) School nutrition program directors
with local educational agency
enrollment of 2,500 to 9,999 students.
Directors must meet the requirements in
either paragraph (b)(1)(ii)(A), (B), (C), or
(D) of this section.
(A) A bachelor’s degree, or equivalent
educational experience, as determined
by the State agency, with an academic
major or concentration in food and
nutrition, food service management,
dietetics, family and consumer sciences,
nutrition education, culinary arts,
business, or a related field;
(B) A bachelor’s degree, or equivalent
educational experience, as determined
by the State agency, with any academic
major or area of concentration, and a
State-recognized certificate for school
nutrition directors;
(C) A bachelor’s degree in any
academic major and at least two years
of relevant experience in school
nutrition programs; or
(D) An associate’s degree, or
equivalent educational experience, as
determined by the State agency, with an
academic major or area of concentration
in food and nutrition, food service
management, dietetics, family and
consumer sciences, nutrition education,
culinary arts, business, or a related field
and at least two years of relevant school
nutrition program experience. Directors
hired with an associate’s degree are
strongly encouraged to work toward
attaining a bachelor’s degree in an
academic major in the fields listed in
this paragraph (b)(1)(ii)(D).
(iii) School nutrition program
directors with local educational agency
enrollment of 10,000 or more students.
Directors must meet the requirements in
either paragraph (b)(1)(iii)(A), (B), or (C)
of this section.
(A) A bachelor’s degree, or equivalent
educational experience, as determined
by the State agency, with an academic
major or area of concentration in food
and nutrition, food service management,
dietetics, family and consumer sciences,
nutrition education, culinary arts,
business, or a related field;
(B) A bachelor’s degree, or equivalent
educational experience, as determined
by the State agency, with any academic
major or area of concentration, and a
State-recognized certificate for school
nutrition directors; or
(C) A bachelor’s degree in any major
and at least five years of experience in
management of school nutrition
programs.
(D) School food authorities are
strongly encouraged to seek out
individuals who possess a master’s
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degree or are willing to work toward a
master’s degree in the fields listed in
this paragraph. At least one year of
management experience, preferably in
school nutrition, is strongly
recommended. It is also strongly
recommended that directors have at
least three credit hours at the university
level in food service management and at
least three credit hours in nutritional
sciences at the time of hire.
(iv) Exceptions to the hiring
standards. (A) For a local educational
agency with less than 500 students, the
State agency may approve the hire of a
director who meets one of the
educational criteria in paragraphs
(b)(1)(i)(B) through (D) of this section
but has less than the required years of
relevant food service experience.
(B) For a local educational agency
with 2,500 or more students, the State
agency may approve the hire of a
director who does not meet the
educational criteria in paragraphs
(b)(1)(ii)(A) through (D) or paragraphs
(b)(1)(iii)(A) through (C) of this section,
as applicable, but who has at least 10
years of school nutrition program
experience.
(C) Acting school nutrition program
directors are not required to meet the
hiring standards established in this
paragraph (b)(1) of this section;
however, the State agency may require
acting school nutrition program
directors expected to serve for more
than 30 business days to meet the hiring
standards established in established in
this paragraph (b)(1).
(v) School nutrition program directors
for all local educational agency sizes.
All school nutrition program directors,
for all local educational agency sizes,
must have completed at least eight
hours of food safety training within five
years prior to their starting date or
complete eight hours of food safety
training within 30 calendar days of their
starting date. At the discretion of the
State agency, all school nutrition
program directors, regardless of their
starting date, may be required to
complete eight hours of food safety
training every five years.
(2) [Reserved]
(c) Continuing education/training
standards for all school nutrition
program directors. Each school year, the
school food authority must ensure that
all school nutrition program directors
(including acting directors, at the
discretion of the State agency), complete
12 hours of annual continuing
education/training. The annual training
must include, but is not limited to,
administrative practices (including
training in application, certification,
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verification, meal counting, and meal
claiming procedures), as applicable, and
any other specific topics identified by
FNS, as needed, to address Program
integrity or other critical issues.
Continuing education/training required
under this paragraph (c) is in addition
to the food safety training required in
the first year of employment under
paragraph (b)(1)(v) of this section.
(d) Continuing education/training
standards for all school nutrition
program managers. Each school year,
the school food authority must ensure
that all school nutrition program
managers have completed 10 hours of
annual continuing education/training.
The annual training must include, but is
not limited to, the following topics, as
applicable:
(1) Administrative practices
(including training in application,
certification, verification, meal
counting, and meal claiming
procedures);
(2) The identification of reimbursable
meals at the point of service;
(3) Nutrition;
(4) Health and safety standards; and
(5) Any specific topics identified by
FNS, as needed, to address Program
integrity or other critical issues.
(e) Continuing education/training
standards for all staff with responsibility
for school nutrition programs. Each
school year, the school food authority
must ensure that all staff with
responsibility for school nutrition
programs that work an average of at
least 20 hours per week, other than
school nutrition program directors and
managers, completes 6 hours of annual
training in areas applicable to their jobs.
Part-time staff working an average of
less than 20 hours per week must
complete 4 hours of annual training.
The annual training must include, but is
not limited to, the following topics, as
applicable to their positions and
responsibilities:
(1) Free and reduced price eligibility;
(2) Application, certification, and
verification procedures;
(3) The identification of reimbursable
meals at the point of service;
(4) Nutrition;
(5) Health and safety standards; and
(6) Any specific topics identified by
FNS, as needed, to address Program
integrity or other critical issues.
(f) Summary of required minimum
continued education/training standards.
The annual training requirements for
school nutrition program directors,
managers, and staff are summarized in
the following table.
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32077
TABLE 1 TO PARAGRAPH (f)—SUMMARY OF REQUIRED ANNUAL TRAINING 1 2
School Nutrition Program Directors
School Nutrition Program Managers
School Nutrition Program Staff .......
Acting and Temporary Staff, Substitutes, and Volunteers.
Each year, at least 12 hours of annual education/training.
Includes topics such as:
• Administrative practices (including training in application, certification, verification, meal counting,
and meal claiming procedures).
• Any specific topics required by FNS, as needed, to address Program integrity and other critical
issues.
This required continuing education/training is in addition to the food safety training required in the first year
of employment, or for all school nutrition program directors if determined by the State agency.
Each year, at least 10 hours of annual education/training.
Includes topics such as:
• Administrative practices (including training in application, certification, verification, meal counting,
and meal claiming procedures).
• The identification of reimbursable meals at the point of service.
• Nutrition, health, and safety standards.
• Any specific topics required by FNS, as needed, to address Program integrity or other critical
issues.
Each year, at least 6 hours of annual education/training.
Includes topics such as:
• Free and reduced price eligibility.
• Application, certification, and verification procedures.
• The identification of reimbursable meals at the point of service.
• Nutrition, health, and safety standards.
• Any specific topics required by FNS, as needed, to address Program integrity or other critical
issues.
This requirement applies to staff, other than directors and managers, who work at least 20 hours per week.
At the discretion of the State agency, acting and temporary staff, substitutes, and volunteers must complete training in one or more of the following topics within 30 calendar days of their start date:
• Free and reduced price eligibility.
• Application, certification, and verification procedures.
• The identification of reimbursable meals at the point of service.
• Nutrition, health, and safety standards.
• Any specific topics required by FNS, as needed, to address Program integrity or other critical
issues.
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1 School nutrition program directors, managers, and staff may carry over excess annual training hours to an immediately previous or subsequent school year and demonstrate compliance with the training requirements over a period of two school years, provided that some training
hours are completed each school year.
2 Program directors, managers, and staff hired on or after January 1 of each school year must complete half of their required annual training
hours by June 30 of the school year in which they were hired.
(g) Use of food service funds for
training costs. Costs associated with
annual continuing education/training
required under paragraphs (b)(3), (c) and
(d) of this section are allowed provided
they are reasonable, allocable, and
necessary in accordance with the cost
principles set forth in 2 CFR part 225,
Cost Principles for State, Local and
Indian Tribal Governments (OMB
Circular A–87). However, food service
funds must not be used to pay for the
cost of college credits incurred by an
individual to meet the hiring
requirements in paragraphs (b)(1)(i)
through (iv) and (b)(2) of this section.
(h) School food authority oversight.
Each school year, the school food
authority director must document
compliance with the requirements of
this section for all staff with
responsibility for school nutrition
programs, including directors,
managers, and staff. Documentation
must be adequate to establish, to the
State’s satisfaction during
administrative reviews, that employees
are meeting the minimum professional
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standards. The school food authority
must certify that:
(1) The school nutrition program
director meets the hiring standards and
training requirements set forth in
paragraph (b) of this section.
(2) Each employee has completed the
applicable training requirements in
paragraphs (c) and (d) of this section no
later than the end of each school year.
(3) Each employee tasked with
Program procurement has completed
annual procurement training, as
required under § 210.21(h), by the end
of each school year.
PART 215—SPECIAL MILK PROGRAM
FOR CHILDREN
20. The authority citation for part 215
continues to read as follows:
■
Authority: 42 U.S.C. 1772 and 1779.
21. In § 215.7a, revise paragraph (b) to
read as follows:
■
§ 215.7a Fluid milk and non-dairy milk
substitute requirements.
*
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*
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*
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(b) Fluid milk substitutes for nondisability reasons. (1) A school food
authority or child care institution may
offer fluid milk substitutes based on a
written request from a child’s parent or
guardian, a State licensed healthcare
professional, or registered dietitian. A
school food authority or child care
institution choosing to offer fluid milk
substitutes for a non-disability reason is
not required to offer the specific fluid
milk substitutes requested but may offer
the fluid milk substitutes of its choice,
provided the fluid milk substitutes
offered meet the requirements of
paragraph (b)(2) of this section.
(2) If a school food authority or child
care institution chooses to offer one or
more fluid milk substitutes for nondisability reasons, the fluid milk
substitutes must provide, at a minimum,
the nutrients listed in the following
table. Fluid milk substitutes must be
fortified in accordance with fortification
guidelines issued by the Food and Drug
Administration.
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TABLE 1 TO PARAGRAPH (b)(2)—NU- Contents of Federal Awards (subpart C)
TRIENT REQUIREMENTS FOR FLUID does not apply to the National School
Lunch Program).
MILK SUBSTITUTES
Nutrient
Per cup (8 fl. oz.)
Calcium .....................
Protein .......................
Vitamin A ...................
Vitamin D ..................
Magnesium ................
Phosphorus ...............
Potassium .................
Riboflavin ..................
Vitamin B–12 .............
276 mg.
8 g.
150 mcg. retinol activity equivalents
(RAE).
2.5 mcg.
24 mg.
222 mg.
349 mg.
0.44 mg.
1.1 mcg.
(3) Expenses incurred when providing
fluid milk substitutes that exceed
program reimbursements must be paid
by the school food authority or child
care institution; costs may be paid from
the nonprofit food service account.
■ 22. In § 215.14a, revise paragraph (e)
to read as follows:
§ 215.14a
Procurement standards.
*
*
*
*
*
(e) Geographic preference. A school
food authority participating in the
Program may apply a geographic
preference when procuring milk,
including the use of ‘‘locally grown’’,
‘‘locally raised’’, or ‘‘locally caught’’ as
procurement specifications or selection
criteria for unprocessed or minimally
processed food items. When utilizing
the geographic preference to procure
milk, the school food authority making
the purchase has the discretion to
determine the local area to which the
geographic preference option will be
applied, so long as there are an
appropriate number of qualified firms
able to compete.
PART 220—SCHOOL BREAKFAST
PROGRAM
23. The authority citation for part 220
continues to read as follows:
■
Authority: 42 U.S.C. 1773, 1779, unless
otherwise noted.
24. Revise and republish § 220.2 to
read as follows:
■
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§ 220.2
Definitions.
For the purpose of this part the term:
2 CFR part 200, means the Uniform
Administrative Requirements, Cost
Principles, and Audit Requirements for
Federal Awards published by OMB. The
part reference covers applicable:
Acronyms and Definitions (subpart A),
General Provisions (subpart B), Post
Federal Award Requirements (subpart
D), Cost Principles (subpart E), and
Audit Requirements (subpart F). (NOTE:
Pre-Federal Award Requirements and
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Act means the Child Nutrition Act of
1966, as amended.
Applicable credits shall have the
meaning established in 2 CFR part 200
and USDA implementing regulations 2
CFR parts 400 and 415.
Breakfast means a meal which meets
the meal requirements set out in § 220.8,
and which is served to a child in the
morning hours. The meal must be
served at or close to the beginning of the
child’s day at school.
Child means:
(1) A student of high school grade or
under as determined by the State
educational agency, who is enrolled in
an educational unit of high school grade
or under as described in paragraphs (1)
and (2) of the definition of ‘‘School’’ in
this section, including students with a
disability who participate in a school
program established for persons with
disabilities; or
(2) A person under 21 chronological
years of age who is enrolled in an
institution or center as described in
paragraph (3) of the definition of
‘‘School’’ in this section.
Contractor means a commercial
enterprise, public or nonprofit private
organization or individual that enters
into a contract with a school food
authority.
Cost reimbursable contract means a
contract that provides for payment of
incurred costs to the extent prescribed
in the contract, with or without a fixed
fee.
Department means the United States
Department of Agriculture.
Distributing Agency means a State
agency which enters into an agreement
with the Department for the distribution
to schools of donated foods pursuant to
part 250 of this chapter.
Fiscal year means a period of 12
calendar months beginning on October
1 of any year and ending September 30
of the following year.
Fixed fee means an agreed upon
amount that is fixed at the inception of
the contract. In a cost reimbursable
contract, the fixed fee includes the
contractor’s direct and indirect
administrative costs and profit allocable
to the contract.
Fixed-price contract means a contract
that charges a fixed cost per meal, or a
fixed cost for a certain time period.
Fixed-price contracts may include an
economic price adjustment tied to a
standard index.
FNS means the Food and Nutrition
Service, United States Department of
Agriculture.
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FNSRO means the appropriate
Regional Office of the Food and
Nutrition Service of the Department.
Food item means a specific food
offered within a meal component.
Free breakfast means a breakfast
served under the Program to a child
from a household eligible for such
benefits under part 245 of this chapter
and for which neither the child nor any
member of the household pays or is
required to work.
Infant cereal means any iron fortified
dry cereal especially formulated and
generally recognized as cereal for
infants that is routinely mixed with
breast milk or iron-fortified infant
formula prior to consumption.
Infant formula means any ironfortified infant formula intended for
dietary use solely as a food for normal
healthy infants excluding those
formulas specifically formulated for
infants with inborn errors of metabolism
or digestive or absorptive problems.
Infant formula, as served, must be in
liquid state at recommended dilution.
Local educational agency means a
public board of education or other
public or private nonprofit authority
legally constituted within a State for
either administrative control or
direction of, or to perform a service
function for, public or private nonprofit
elementary schools or secondary
schools in a city, county, township,
school district, or other political
subdivision of a State, or for a
combination of school districts or
counties that is recognized in a State as
an administrative agency for its public
or private nonprofit elementary schools
or secondary schools. The term also
includes any other public or private
nonprofit institution or agency having
administrative control and direction of
a public or private nonprofit elementary
school or secondary school, including
residential child care institutions,
Bureau of Indian Affairs schools, and
educational service agencies and
consortia of those agencies, as well as
the State educational agency in a State
or territory in which the State
educational agency is the sole
educational agency for all public or
private nonprofit schools.
Meal component means one of the
food groups which comprise
reimbursable meals. The meal
components are: fruits, vegetables,
grains, meats/meat alternates, and fluid
milk.
National School Lunch Program
means the Program authorized by the
National School Lunch Act.
Net cash resources means all monies
as determined in accordance with the
State agency’s established accounting
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Federal Register / Vol. 89, No. 81 / Thursday, April 25, 2024 / Rules and Regulations
system, that are available to or have
accrued to a School Food Authority’s
nonprofit school food service at any
given time, less cash payable. Such
monies may include but are not limited
to, cash on hand, cash receivable,
earnings or investments, cash on deposit
and the value of stocks, bonds or other
negotiable securities.
Nonprofit means, when applied to
schools or institutions eligible for the
Program, exempt from income tax under
section 501(c)(3) of the Internal Revenue
Code of 1986.
Nonprofit school food service means
all food service operations conducted by
the school food authority principally for
the benefit of school children, all of the
revenue from which is used solely for
the operation or improvement of such
food service.
Nonprofit school food service account
means the restricted account in which
all of the revenue from all food service
operations conducted by the school food
authority principally for the benefit of
school children is retained and used
only for the operation or improvement
of the nonprofit school food service.
OIG means the Office of the Inspector
General of the Department.
Program means the School Breakfast
Program.
Reduced price breakfast means a
breakfast served under the Program:
(1) To a child from a household
eligible for such benefits under part 245
of this chapter;
(2) For which the price is less than the
school food authority designated full
price of the breakfast and which does
not exceed the maximum allowable
reduced price specified under part 245
of this chapter; and
(3) For which neither the child nor
any member of the household is
required to work.
Reimbursement means Federal cash
assistance including advances paid or
payable to participating schools for
breakfasts meeting the requirements of
§ 220.8 served to eligible children.
Revenue when applied to nonprofit
school food service means all monies
received by or accruing to the nonprofit
school food service in accordance with
the State agency’s established
accounting system including, but not
limited to, children’s payments,
earnings on investments, other local
revenues, State revenues, and Federal
cash reimbursements.
School means:
(1) An educational unit of high school
grade or under, recognized as part of the
educational system in the State and
operating under public or nonprofit
private ownership in a single building
or complex of buildings;
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(2) Any public or nonprofit private
classes of preprimary grade when they
are conducted in the aforementioned
schools; or
(3) Any public or nonprofit private
residential child care institution, or
distinct part of such institution, which
operates principally for the care of
children, and, if private, is licensed to
provide residential child care services
under the appropriate licensing code by
the State or a subordinate level of
government, except for residential
summer camps which participate in the
Summer Food Service Program for
Children, Job Corps centers funded by
the Department of Labor, and private
foster homes.
School Breakfast Program means the
program authorized by section 4 of the
Child Nutrition Act of 1966.
School in severe need means a school
determined to be eligible for rates of
reimbursement in excess of the
prescribed National Average Payment
Factors, based upon the criteria set forth
in § 220.9(d).
School food authority means the
governing body which is responsible for
the administration of one or more
schools; and has legal authority to
operate the Program therein or be
otherwise approved by FNS to operate
the Program.
School week means the period of time
used to determine compliance with the
meal requirements in § 220.8. The
period must be a normal school week of
five consecutive days; however, to
accommodate shortened weeks resulting
from holidays and other scheduling
needs, the period must be a minimum
of three consecutive days and a
maximum of seven consecutive days.
Weeks in which school breakfasts are
offered less than three times must be
combined with either the previous or
the coming week.
Seamless Summer Option means the
meal service alternative authorized by
Section 13(a)(8) of the Richard B.
Russell National School Lunch Act, 42
U.S.C. 1761(a)(8), under which public or
nonprofit school food authorities
participating in the National School
Lunch Program or School Breakfast
Program offer meals at no cost to
children during the traditional summer
vacation periods and, for year-round
schools, vacation periods longer than 10
school days.
Secretary means the Secretary of
Agriculture.
State means any of the 50 States,
District of Columbia, the
Commonwealth of Puerto Rico, the
Virgin Islands, Guam, and, as
applicable, American Samoa and the
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32079
Commonwealth of the Northern
Marianas.
State agency means:
(1) The State educational agency;
(2) Such other agency of the State as
has been designated by the Governor or
other appropriate executive or
legislative authority of the State and
approved by the Department to
administer the Program in schools as
specified in § 210.3(b) of this chapter; or
(3) The FNSRO, where the FNSRO
administers the Program as specified in
§ 210.3(c) of this chapter.
State educational agency means, as
the State legislature may determine:
(1) The chief State school officer (such
as the State Superintendent of Public
Instruction, Commissioner of Education,
or similar officer), or
(2) A board of education controlling
the State department of education.
Tofu means a soybean-derived food,
made by a process in which soybeans
are soaked, ground, mixed with water,
heated, filtered, coagulated, and formed
into cakes. Basic ingredients are whole
soybeans, one or more food-grade
coagulants (typically a salt or an acid),
and water. Tofu products must conform
to FNS guidance to count toward the
meats/meat alternates component.
USDA implementing regulations
include the following: 2 CFR part 400,
Uniform Administrative Requirements,
Cost Principles, and Audit
Requirements for Federal Awards; 2
CFR part 415, General Program
Administrative Regulations; 2 CFR part
416, General Program Administrative
Regulations for Grants and Cooperative
Agreements to State and Local
Governments; and 2 CFR part 418, New
Restrictions on Lobbying.
Whole grain-rich is the term
designated by FNS to indicate that the
grain content of a product is between 50
and 100 percent whole grain with any
remaining grains being enriched.
Whole grains means grains that
consist of the intact, ground, cracked, or
flaked grain seed whose principal
anatomical components—the starchy
endosperm, germ and bran—are present
in the same relative proportions as they
exist in the intact grain seed.
Yogurt means commercially prepared
coagulated milk products obtained by
the fermentation of specific bacteria,
that meet milk fat or milk solid
requirements and to which flavoring
foods or ingredients may be added.
These products are covered by the Food
and Drug Administration’s Definition
and Standard of Identity for yogurt, 21
CFR 131.200, and low-fat yogurt and
non-fat yogurt covered as a standardized
food under 21 CFR 130.10.
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25. In § 220.3, revise and republish
paragraph (a) to read as follows:
■
§ 220.3
Administration.
(a) Within the Department, FNS shall
act on behalf of the Department in the
administration of the Program covered
by this part.
*
*
*
*
*
■ 26. In § 220.7:
■ a. Revise and republish paragraphs
(d)(3)(ii) and (iii), (e)(1)(iii), and (e)(2);
■ b. Revise paragraph (e)(4); and
■ c. Revise and republish paragraphs
(e)(5), (9), and (13) and (h).
The revisions read as follows:
§ 220.7
Requirements for participation.
lotter on DSK11XQN23PROD with RULES3
*
*
*
*
*
(d) * * *
(3) * * *
(ii) The food service management
company must have State or local health
certification for any facility outside the
school in which it proposes to prepare
meals and the food service management
company must maintain this health
certification for the duration of the
contract;
(iii) No payment is to be made for
meals that are spoiled or unwholesome
at time of delivery, do not meet detailed
specifications as developed by the
school food authority for each meal
component specified in § 220.8, or do
not otherwise meet the requirements of
the contract. Specifications will cover
items such a grade, purchase units,
style, condition, weight, ingredients,
formulations, and delivery time; and
*
*
*
*
*
(e) * * *
(1) * * *
(iii) Revenues received by the
nonprofit school food service must not
be used to purchase land or buildings or
to construct buildings;
*
*
*
*
*
(2) Serve breakfasts which meet the
minimum requirements prescribed in
§ 220.8;
*
*
*
*
*
(4) Serve breakfast free or at a reduced
price to all children who are determined
by the local education agency to be
eligible for such meals under part 245
of this chapter;
(5) Make no discrimination against
any child because of the child’s inability
to pay the full price of the breakfasts;
*
*
*
*
*
(9) Purchase, in as large quantities as
may be efficiently utilized in its
nonprofit school food service, foods
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designated as plentiful by the State
agency;
*
*
*
*
*
(13) Upon request, make all accounts
and records pertaining to its nonprofit
school food service available to the State
agency and to FNS for audit or review
at a reasonable time and place. Such
records must be retained for a period of
three years after the end of the fiscal
year to which they pertain, except that
if audit findings have not been resolved,
the records must be retained beyond the
three-year period as long as required for
the resolution of the issues raised by the
audit;
*
*
*
*
*
(h) Local educational agencies must
comply with the provisions of § 210.31
of this chapter regarding the
development, implementation, periodic
review and update, and public
notification of the local school wellness
policy.
■ 27. Revise and republish § 220.8 to
read as follows:
§ 220.8
Meal requirements for breakfasts.
(a) General requirements. This section
contains the meal requirements
applicable to school breakfasts for
students in grades K through 12, and for
children under the age of 5. In general,
school food authorities must ensure that
participating schools provide nutritious,
well-balanced, and age-appropriate
breakfasts to all the children they serve
to improve their diet and safeguard their
health.
(1) General nutrition requirements.
School breakfasts offered to children age
5 and older must meet, at a minimum,
the meal requirements in paragraph (b)
of this section. Schools must follow a
food-based menu planning approach
and produce enough food to offer each
child the quantities specified in the
meal pattern established in paragraph
(c) of this section for each age/grade
group served in the school. In addition,
school breakfasts must meet the dietary
specifications in paragraph (f) of this
section. Schools offering breakfasts to
children ages 1 to 4 and infants must
meet the meal pattern requirements in
paragraphs (o) and (p) of this section, as
applicable. When breakfast is served in
the cafeteria, schools must make plain
potable water available and accessible
without restriction to children at no
charge.
(2) Unit pricing. Schools must price
each meal as a unit. The price of a
reimbursable breakfast does not change
if the student does not take a food item
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or requests smaller portions. Schools
must identify, near or at the beginning
of the serving line(s), the food items that
constitute the unit-priced reimbursable
school meal(s).
(3) Production and menu records.
Schools or school food authorities, as
applicable, must keep production and
menu records for the meals they
produce. These records must show how
the meals offered contribute to the
required meal components and food
quantities for each age/grade group
every day. Schools or school food
authorities must maintain records of the
latest nutritional analysis of the school
menus conducted by the State agency.
Information on maintaining production
and menu records may be found in FNS
guidance.
(b) Meal requirements for school
breakfasts. School breakfasts for
children ages 5 and older must reflect
food and nutrition requirements
specified by the Secretary. Compliance
with these requirements is measured as
follows:
(1) On a daily basis:
(i) Meals offered to each age/grade
group must include the meal
components and food quantities
specified in the meal pattern in
paragraph (c) of this section;
(ii) Meal selected by each student
must have the number of meal
components required for a reimbursable
meal and include at least one fruit or
vegetable.
(2) Over a 5-day school week:
(i) Average calorie content of the
meals offered to each age/grade group
must be within the minimum and
maximum calorie levels specified in
paragraph (f) of this section;
(ii) Average saturated fat content of
the meals offered to each age/grade
group must be less than 10 percent of
total calories as specified in paragraph
(f) of this section;
(iii) By July 1, 2027, average added
sugars content of the meals offered to
each age/grade group must be less than
10 percent of total calories as specified
in paragraph (f) of this section; and
(iv) Average sodium content of the
meals offered to each age/grade group
must not exceed the maximum level
specified in paragraph (f) of this section.
(c) Meal pattern for school breakfasts
for grades K through 12. A school must
offer the meal components and
quantities required in the breakfast meal
pattern established in the following
table:
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TABLE 1 TO PARAGRAPH (c) INTRODUCTORY TEXT—SCHOOL BREAKFAST PROGRAM MEAL PATTERN
Amount of food 1 per week (minimum per day)
Meal components
Grades K–5
Fruits (cups) 2 ...............................................................................................................................
Vegetables (cups) 2 ......................................................................................................................
Dark Green Subgroup ..........................................................................................................
Red/Orange Subgroup .........................................................................................................
Beans, Peas, and Lentils Subgroup .....................................................................................
Starchy Subgroup .................................................................................................................
Other Vegetables Subgroup .................................................................................................
Grains or Meats/Meat Alternates (oz. eq) 3 .................................................................................
Fluid Milk (cups) 4 ........................................................................................................................
Grades 6–8
5 (1)
0
0
0
0
0
0
7–10 (1)
5 (1)
Grades 9–12
5 (1)
0
0
0
0
0
0
8–10 (1)
5 (1)
5 (1)
0
0
0
0
0
0
9–10 (1)
5 (1)
400–550
<10
<10
≤600 mg
≤535 mg
450–600
<10
<10
≤640 mg
≤570 mg
Dietary Specifications: Daily Amount Based on the Average for a 5-Day Week 5
Minimum-Maximum Calories (kcal) .............................................................................................
Saturated Fat (% of total calories) ..............................................................................................
Added Sugars (% of total calories) .............................................................................................
Sodium Limit: In place through June 30, 2027 ...........................................................................
Sodium Limit: Must be implemented by July 1, 2027 .................................................................
350–500
<10
<10
≤540 mg
≤485 mg
1 Food
items included in each group and subgroup and amount equivalents.
creditable serving is 1⁄8 cup. Schools must offer 1 cup of fruit daily and 5 cups of fruit weekly. Schools may substitute vegetables for
fruit at breakfast as described in paragraphs (c)(2)(i) and (ii) of this section.
3 Minimum creditable serving is 0.25 oz. eq. School may offer grains, meats/meat alternates, or a combination of both to meet the daily and
weekly ounce equivalents for this combined component. At least 80 percent of grains offered weekly at breakfast must be whole grain-rich as defined in § 210.2 of this chapter, and the remaining grain items offered must be enriched.
4 Minimum creditable serving is 8 fluid ounces. All fluid milk must be fat-free (skim) or low-fat (1 percent fat or less) and must meet the requirements in paragraph (d) of this section.
5 By July 1, 2027, schools must meet the dietary specification for added sugars. Schools must meet the sodium limits by the dates specified in
this chart. Discretionary sources of calories may be added to the meal pattern if within the dietary specifications.
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2 Minimum
(1) Age/grade groups. Schools must
plan menus for students using the
following age/grade groups: Grades K–5
(ages 5–10), grades 6–8 (ages 11–13),
and grades 9–12 (ages 14–18). If an
unusual grade configuration in a school
prevents the use of the established age/
grade groups, students in grades K–5
and grades 6–8 may be offered the same
food quantities at breakfast provided
that the calorie and sodium standards
for each age/grade group are met. No
customization of the established age/
grade groups is allowed.
(2) Meal components. Schools must
offer students in each age/grade group
the meal components specified in meal
pattern in this paragraph (c). Meal
component descriptions in § 210.10 of
this chapter apply to this Program.
(i) Fruits component. Schools must
offer daily the fruit quantities specified
in the breakfast meal pattern in this
paragraph (c). Fruits that are fresh,
frozen, or dried, or canned in light
syrup, water or fruit juice may be
offered to meet the fruits component
requirements. Vegetables may be offered
in place of all or part of the required
fruits at breakfast. Schools that choose
to offer vegetables in place of fruits at
breakfast one day per school week may
offer any vegetables, including starchy
vegetables. Schools that choose to offer
vegetables in place of fruits at breakfast
two or more days per school week must
offer at least two different vegetable
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subgroups as defined in
§ 210.10(c)(2)(ii) of this chapter. All
fruits are credited based on their volume
as served, except that 1⁄4 cup of dried
fruit counts as 1⁄2 cup of fruit. Only
pasteurized, full-strength fruit juice may
be offered, and may be credited to meet
no more than one-half of the fruit
component.
(ii) Vegetables component. Schools
are not required to offer vegetables as
part of the breakfast menu but may offer
vegetables to meet part or all of the fruit
requirement. Schools that choose to
offer vegetables in place of fruits at
breakfast one day per school week may
offer any vegetables, including starchy
vegetables. Schools that choose to offer
vegetables in place of fruits at breakfast
two or more days more than one day per
school week must offer vegetables from
at least two different vegetable
subgroups as defined in
§ 210.10(c)(2)(ii) of this chapter. Fresh,
frozen, or canned vegetables and dry
beans, peas, and lentils may be offered
to meet the fruit requirement. All
vegetables are credited based on their
volume as served, except that 1 cup of
leafy greens counts as 1⁄2 cup of
vegetables and tomato paste and tomato
puree are credited based on calculated
volume of the whole food equivalency.
Pasteurized, full-strength vegetable juice
may be offered to meet no more than
one-half of the vegetable component.
Cooked dry beans, peas, and lentils may
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be counted as either a vegetable or as a
meat/meat alternate but not as both in
the same dish.
(iii) Grains. Grains offered at breakfast
count toward the combined grains and
meats/meat alternates component.
Schools may offer grains, meats/meat
alternates, or a combination of both to
meet the daily and weekly ounce
equivalents for this combined
component. Information on crediting
grain items may be found in FNS
guidance.
(A) Whole grain-rich requirement.
Whole grain-rich is the term designated
by FNS to indicate that the grain content
of a product is between 50 and 100
percent whole grain with any remaining
grains being enriched. At least 80
percent of grains offered at breakfast
weekly, based on ounce equivalents,
must meet the whole grain-rich criteria
as defined in § 220.2, and the remaining
grain items offered must be enriched.
(B) Breakfast cereals. By July 1, 2025,
breakfast cereals must contain no more
than 6 grams of added sugars per dry
ounce.
(C) Daily and weekly servings. The
grains component is based on minimum
daily servings plus total servings over a
5-day school week. Schools serving
breakfast 6 or 7 days per week must
increase the weekly grains quantity by
approximately 20 percent (1⁄5) for each
additional day. When schools operate
less than 5 days per week, they may
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decrease the weekly quantity by
approximately 20 percent (1⁄5) for each
day less than 5.
(iv) Meats/meat alternates. Meats/
meat alternates offered at breakfast
count toward the combined grains and
meats/meat alternates component.
Schools may offer grains, meats/meat
alternates, or a combination of both to
meet the daily and weekly ounce
equivalents for this combined
component. Information on crediting
meats/meat alternates may be found in
FNS guidance.
(A) Enriched macaroni. Enriched
macaroni with fortified protein, as
defined in appendix A to part 210 of
this chapter, may be used to meet part
of the meats/meat alternates
requirement when used as specified in
appendix A to part 210.
(B) Nuts and seeds. Nuts and seeds
and their butters are allowed as meat
alternates. Acorns, chestnuts, and
coconuts do not credit as meat
alternates because of their low protein
and iron content. Nut and seed meals or
flours may credit only if they meet the
requirements for Alternate Protein
Products established in appendix A to
this part.
(C) Yogurt. Yogurt may be offered to
meet all or part of the combined grains
and meats/meat alternates component.
Yogurt may be plain or flavored,
unsweetened or sweetened. By July 1,
2025, yogurt must contain no more than
12 grams of added sugars per 6 ounces
(2 grams of added sugars per ounce).
Noncommercial and/or nonstandardized yogurt products, such as
frozen yogurt, drinkable yogurt
products, homemade yogurt, yogurt
flavored products, yogurt bars, yogurt
covered fruits and/or nuts or similar
products are not creditable. Four ounces
(weight) or 1⁄2 cup (volume) of yogurt
equals one ounce of the meats/meat
alternates requirement.
(D) Tofu and soy products.
Commercial tofu and soy products may
be offered to meet all or part of the
combined grains and meats/meat
alternates component. Noncommercial
and/or non-standardized tofu and
products are not creditable.
(E) Beans, peas, and lentils. Cooked
dry beans, peas, and lentils may be used
to meet all or part of the combined
grains and meats/meat alternates
component. Beans, peas, and lentils are
identified in this section and include
foods such as black beans, garbanzo
beans, lentils, kidney beans, mature
lima beans, navy beans, pinto beans,
and split peas. Cooked dry beans, peas,
and lentils may be counted as either a
vegetable or as a meat/meat alternate but
not as both in the same dish.
(F) Other meat alternates. Other meat
alternates, such as cheese and eggs, may
be used to meet all or part of the
combined grains and meats/meat
alternates component.
(v) Fluid milk component. Fluid milk
must be offered daily in accordance
with paragraph (d) of this section.
(3) Grain substitutions. (i) Schools in
American Samoa, Guam, Hawaii, Puerto
Rico, and the U.S. Virgin Islands may
serve any vegetable, including
vegetables such as breadfruit, prairie
turnips, plantains, sweet potatoes, and
yams, to meet the combined grains and
meats/meat alternates component.
(ii) School food authorities and
schools that are tribally operated,
operated by the Bureau of Indian
Education, and that serve primarily
American Indian or Alaska Native
children, may serve any vegetable,
including vegetables such as breadfruit,
prairie turnips, plantains, sweet
potatoes, and yams, to meet the
combined grains and meats/meat
alternates component.
(4) Traditional Indigenous foods.
Traditional Indigenous foods may credit
toward the required meal components.
Information on food crediting may be
found in FNS guidance. Schools are
encouraged to serve traditional
Indigenous foods as part of their
breakfast service. Per the Agriculture
Improvement Act of 2014, as amended
(25 U.S.C. 1685(b)(5)) traditional foods
means food that has traditionally been
prepared and consumed by an American
Indian tribe, including wild game meat;
fish; seafood; marine mammals; plants;
and berries.
(d) Fluid milk requirements. Schools
must offer students a variety (at least
two different options) of fluid milk at
breakfast daily. All fluid milk must be
fat-free (skim) or low-fat (1 percent fat
or less). Milk with higher fat content is
not creditable. Low-fat or fat-free
lactose-free and reduced-lactose fluid
milk may also be offered. Milk may be
flavored or unflavored, provided that
unflavored milk is offered at each meal
service. By July 1, 2025, flavored milk
must contain no more than 10 grams of
added sugars per 8 fluid ounces, or for
flavored milk sold as competitive food
for middle and high schools, 15 grams
of added sugars per 12 fluid ounces.
Schools must also comply with other
applicable fluid milk requirements in
§ 210.10(d) of this chapter.
(e) Offer versus serve for grades K
through 12. School breakfast must offer
daily at least the three meal components
required in the meal pattern in
paragraph (c) of this section. To exercise
the offer versus serve option at
breakfast, a school food authority or
school must offer a minimum of four
food items daily as part of the required
components. Under offer versus serve,
students are allowed to decline one of
the four food items, provided that
students select at least 1⁄2 cup of the
fruit component for a reimbursable
meal. If only three food items are offered
at breakfast, school food authorities or
schools may not exercise the offer
versus serve option.
(f) Dietary specifications—(1)
Calories. School breakfasts offered to
each age/grade group must meet, on
average over the school week, the
minimum and maximum calorie levels
specified in the following table:
TABLE 2 TO PARAGRAPH (f)(1)—SCHOOL BREAKFAST PROGRAM CALORIE RANGES
Average Daily Minimum-Maximum Calories (kcal) 1 ...................................................................
Grades K–5
Grades 6–8
Grades 9–12
350–500
400–550
450–600
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1 The average daily amount must fall within the minimum and maximum levels. Discretionary sources of calories may be added to the meal
pattern if within the dietary specifications.
(2) Saturated fat. School breakfast
offered to all age/grade groups must, on
average over the school week, provide
less than 10 percent of total calories
from saturated fat.
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(3) Added sugars. By July 1, 2027,
school breakfasts offered to all age/grade
groups must, on average over the school
week, provide less than 10 percent of
total calories from added sugars.
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(4) Sodium. School breakfasts offered
to each age/grade group must meet, on
average over the school week, the levels
of sodium specified in the following
table within the established deadlines:
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TABLE 3 TO PARAGRAPH (f)(4)—SCHOOL BREAKFAST PROGRAM SODIUM LIMITS
Sodium limit:
in place through
June 30, 2027
(mg)
Age/grade group
≤540
≤600
≤640
Grades K–5 ..................................................................................................................................................
Grades 6–8 ..................................................................................................................................................
Grades 9–12 ................................................................................................................................................
(g) Compliance assistance. The State
agency and school food authority must
provide technical assistance and
training to assist schools in planning
breakfasts that meet the meal pattern in
paragraph (c) of this section, the dietary
specifications established in paragraph
(f) of this section, and the meal pattern
in paragraphs (o) and (p) of this section,
as applicable. Compliance assistance
may be offered during training, onsite
visits, and/or administrative reviews.
(h) State agency responsibilities for
monitoring dietary specifications. When
required by the Administrative Review
process set forth in § 210.18 of this
chapter, the State agency must conduct
a weighted nutrient analysis to evaluate
the average levels of calories, saturated
fat, added sugars, and sodium of the
breakfasts offered to students in grades
K–12 during one week within the
review period. The nutrient analysis
must be conducted in accordance with
the procedures established in
§ 210.10(i)(3) of this chapter. If the
results of the nutrient analysis indicate
that the school breakfasts do not meet
the specifications for calories, saturated
fat, added sugars, or sodium specified in
paragraph (f) of this section, the State
agency or school food authority must
provide technical assistance and require
the reviewed school to take corrective
action to meet the requirements.
(i) Nutrient analyses of school meals.
Any nutrient analysis of school
breakfasts conducted under the
administrative review process set forth
in § 210.18 of this chapter must be
performed in accordance with the
procedures established in § 210.10(i) of
this chapter. The purpose of the nutrient
analysis is to determine the average
levels of calories, saturated fat, added
sugars, and sodium in the breakfasts
offered to each age grade group over a
school week.
(j) Responsibility for monitoring meal
requirements. Compliance with the
applicable breakfast requirements in
paragraph (b) of this section, including
the dietary specifications, and
paragraphs (o) and (p) of this section
will be monitored by the State agency
through administrative reviews
authorized in § 210.18 of this chapter.
(k) Menu choices at breakfast. The
requirements in § 210.10(k) of this
chapter also apply to this Program.
(l) Requirements for breakfast
period—(1) Timing. Schools must offer
Sodium limit:
must be
implemented by
July 1, 2027
(mg)
≤485
≤535
≤570
breakfasts meeting the requirements of
this section at or near the beginning of
the school day.
(2) [Reserved]
(m) Modifications and variations in
reimbursable meals. The requirements
in § 210.10(m) of this chapter also apply
to this Program.
(n) Nutrition disclosure. The
requirements in § 210.10(n) of this
chapter also apply to this Program.
(o) Breakfast requirements for
preschoolers—(1) Breakfasts served to
preschoolers. Schools serving breakfast
to preschoolers under the School
Breakfast Program must serve the meal
components and quantities required in
the breakfast meal pattern established
for the Child and Adult Care Food
Program under § 226.20(a), (c)(1), and
(d) of this chapter. In addition, schools
serving breakfasts to this age group must
comply with the requirements set forth
in paragraphs (a), (c)(3), (g), and (k)
through (m) of this section, as
applicable.
(2) Preschooler breakfast meal pattern
table. The minimum amounts of meal
components to be served at breakfast are
as follows:
TABLE 4 TO PARAGRAPH (o)(2)—PRESCHOOL BREAKFAST MEAL PATTERN
[Select the appropriate components for a reimbursable meal]
Minimum quantities
Meal components and food items 1
Ages 1–2
Fluid Milk 2 ..............................................................................................................................
Vegetables, Fruits, or portions of both 3 .................................................................................
Grains (oz. eq.) 4 .....................................................................................................................
4 fluid ounces ................
⁄ cup ............................
1⁄2 ounce equivalent .......
14
Ages 3–5
6 fluid ounces.
⁄ cup.
1⁄2 ounce equivalent.
12
1 Must
serve all three components for a reimbursable meal.
be unflavored whole milk for children age one. Must be unflavored low-fat (1 percent) or unflavored fat-free (skim) milk for children two
through five years old.
3 Pasteurized full-strength juice may only be offered to meet the vegetable or fruit requirement at one meal, including snack, per day.
4 At least one serving per day, across all eating occasions, must be whole grain-rich. Grain-based desserts do not count toward meeting the
grains requirement. Meats/meat alternates may be offered in place of the entire grains requirement, up to 3 times per week at breakfast. One
ounce equivalent of a meat/meat alternate credits equal to one ounce equivalent of grains. Through September 30, 2025, breakfast cereals must
contain no more than 6 grams of total sugars per dry ounce. By October 1, 2025, breakfast cereals must contain no more than 6 grams of added
sugars per dry ounce. Information on crediting grain items and meats/meat alternates may be found in FNS guidance.
lotter on DSK11XQN23PROD with RULES3
2 Must
(p) Breakfast requirements for
infants—(1) Breakfasts served to infants.
Schools serving breakfasts to infants
ages birth through 11 months under the
School Breakfast Program must serve
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the meal components and quantities
required in the breakfast meal pattern
established for the Child and Adult Care
Food Program, under § 226.20(a), (b),
and (d) of this chapter. In addition,
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schools serving breakfasts to infants
must comply with the requirements set
forth in paragraphs (a), (c)(3), (g), and (k)
through (m) of this section as
applicable.
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(2) Infant breakfast meal pattern
table. The minimum amounts of meal
components to be served at breakfast are
as follows:
TABLE 5 TO PARAGRAPH (p)(2)—INFANT BREAKFAST MEAL PATTERN
Birth through 5 months
6 through 11 months
4–6 fluid ounces breast milk 1 or formula 2 ..............................
6–8 fluid ounces breast milk 1 or formula; 2 and
0–1⁄2 ounce equivalent infant cereal; 2 3 or
0–4 tablespoons meat, fish, poultry, whole egg, cooked dry beans, peas, or lentils; or
0–2 ounces of cheese; or
0–4 ounces (volume) of cottage cheese; or
0–4 ounces or 1⁄2 cup of yogurt; 4 or a combination of the above; 5 and
0–2 tablespoons vegetable or fruit, or a combination of both.5 6
1 Breast milk or formula, or portions of both, must be served; however, it is recommended that breast milk be served from birth through 11
months. For some breastfed infants who regularly consume less than the minimum amount of breast milk per feeding, a serving of less than the
minimum amount of breast milk may be offered, with additional breast milk offered at a later time if the infant will consume more.
2 Infant formula and dry infant cereal must be iron-fortified.
3 Information on crediting grain items may be found in FNS guidance.
4 Through September 30, 2025, yogurt must contain no more than 23 grams of total sugars per 6 ounces. By October 1, 2025, yogurt must
contain no more than 12 grams of added sugars per 6 ounces (2 grams of added sugars per ounce).
5 A serving of this component is required when the infant is developmentally ready to accept it.
6 Fruit and vegetable juices must not be served.
(q) Severability. If any provision of
this section is held to be invalid or
unenforceable by its terms, or as applied
to any person or circumstances, it shall
be severable from this section and not
affect the remainder thereof. In the
event of such holding of invalidity or
unenforceability of a provision, the meal
pattern requirements covered by that
provision reverts to the version
immediately preceding the invalidated
provision.
■ 28. In § 220.13:
■ a. Revise paragraph (b)(3);
■ b. Revise and republish paragraphs (c)
and (f)(3); and
■ c. Remove paragraph (l);
■ d. Redesignate paragraph (m) as
paragraph (l).
The revisions read as follows:
§ 220.13 Special responsibilities of State
agencies.
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(b) * * *
(3) Each State agency must keep the
records supplied by school food
authorities showing the number of food
safety inspections obtained by schools
for the current and three most recent
school years.
(c) Each State agency must promptly
investigate complaints received or
irregularities noted in connection with
the operation of either program, and
must take appropriate action to correct
any irregularities. State agencies must
maintain on file evidence of such
investigations and actions. FNS will
make investigations at the request of the
State agency or where FNS determines
investigations are appropriate.
*
*
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*
*
(f) * * *
(3) For the purposes of compliance
with the meal requirements in § 220.8,
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the State agency must follow the
provisions specified in § 210.18(g) of
this chapter, as applicable.
*
*
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*
■ 29. In § 220.14, revise and republish
paragraphs (c) and (e) to read as follows:
§ 220.14 Claims against school food
authorities.
*
*
*
*
*
(c) The State agency may refer to FNS
for determination any action it proposes
to take under this section.
*
*
*
*
*
(e) If FNS does not concur with the
State agency’s action in paying a claim
or a reclaim, or in failing to collect an
overpayment, FNS will assert a claim
against the State agency for the amount
of such claim, reclaim, or overpayment.
In all such cases the State agency will
have full opportunity to submit to FNS
evidence or information concerning the
action taken. If, in the determination of
FNS, the State agency’s action was
unwarranted, the State agency must
promptly pay to FNS the amount of the
claim, reclaim, or overpayment.
*
*
*
*
*
■ 30. In § 220.16, revise paragraphs (d)
and (f)(1) to read as follows:
§ 220.16
Procurement standards.
*
*
*
*
*
(d) Buy American—(1) Definitions.
For the purpose of this paragraph (d):
(i) Domestic commodity or product
means:
(A) An agricultural commodity that is
produced in the United States; and
(B) A food product that is processed
in the United States substantially using
agricultural commodities that are
produced in the United States.
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(ii) Substantially using agriculture
commodities that are produced in the
United States means over 51 percent of
a food product must consist of
agricultural commodities that were
grown domestically.
(2) In general. Subject to paragraph
(d)(4) of this section, a school food
authority must purchase, to the
maximum extent practicable, domestic
commodities or products.
(3) Required language. School food
authorities must include language
requiring the purchase of foods that
meet the Buy American requirements in
paragraph (d)(1) of this section in all
procurement procedures, solicitations,
and contracts.
(4) Limitations. Paragraphs (d)(2) and
(3) of this section apply only to:
(i) A school food authority located in
the contiguous United States; and
(ii) A purchase of domestic
commodity or product for the school
breakfast program under this part.
(5) Exceptions. The purchase of foods
not meeting the definition in paragraph
(d)(1) of this section is only permissible
when the following criteria are met:
(i) The school food authority
determines that one of the following
limited exceptions is met:
(A) The product is listed in the
Federal Acquisition Regulation (FAR) at
48 CFR 25.104 and/or is not produced
or manufactured in the U.S. in sufficient
and reasonably available quantities of a
satisfactory quality; or
(B) Competitive bids reveal the cost of
a United States product is significantly
higher than the non-domestic product.
(ii) Non-domestic food purchases
(those that do not meet the definition of
domestic commodity or product, as
defined in paragraph (d)(1) of this
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section) must not exceed the following
caps by the established deadlines:
(A) By July 1, 2025, non-domestic
food purchases must not exceed 10
percent of total annual commercial food
costs that a school food authority
purchases per school year.
(B) By July 1, 2028, non-domestic
food purchases must not exceed 8
percent of total annual commercial food
costs that a school food authority
purchases per school year.
(C) By July 1, 2031, non-domestic
food purchases must not exceed 5
percent of total annual commercial food
costs that a school food authority
purchases per school year.
(iii) School food authorities must
maintain documentation, except when
the item purchased is found on the FAR
at 48 CFR 25.104 when using an
exception under paragraph (d)(5)(i) of
this section.
(iv) School food authorities must
maintain documentation, to
demonstrate that when using an
exception under paragraph (d)(5)(i) of
this section their non-domestic food
purchases do not exceed the annual
threshold specified in paragraph
(d)(5)(ii) of this section.
(6) Harvested fish. To meet the
definition of a domestic commodity or
product, harvested fish must meet the
following requirements:
(i) Farmed fish must be harvested
within the United States or any territory
or possession of the United States; and
(ii) Wild caught fish must be
harvested within the Exclusive
Economic Zone of the United States or
by a United States flagged vessel.
(7) Applicability to Hawaii. Paragraph
(d)(2) of this section applies to school
food authorities in Hawaii with respect
to domestic commodities or products
that are produced in Hawaii in
sufficient quantities to meet the needs of
meals provided under the school
breakfast program under this part.
(8) Temporary accommodation. For
school food authorities that demonstrate
they cannot meet the threshold, State
agencies may provide an
accommodation for temporary relief
from the requirement as the State
agency works with the school food
authority to increase domestic
purchases.
*
*
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*
*
(f) * * *
(1) School food authorities
participating in the Program, as well as
State agencies making purchases on
behalf of such school food authorities,
may apply a geographic preference
when procuring unprocessed locally
grown or locally raised agricultural
products, including the use of ‘‘locally
grown’’, ‘‘locally raised’’, or ‘‘locally
caught’’ as procurement specifications
or selection criteria for unprocessed or
minimally processed food items. When
utilizing the geographic preference to
procure such products, the school food
authority making the purchase or the
State agency making purchases on
behalf of such school food authorities
have the discretion to determine the
local area to which the geographic
preference option will be applied, so
long as there are an appropriate number
of qualified firms able to compete;
*
*
*
*
*
PART 225—SUMMER FOOD SERVICE
PROGRAM
31. The authority citation for part 225
continues to read as follows:
■
Authority: Secs. 9, 13 and 14, Richard B.
Russell National School Lunch Act, as
amended (42 U.S.C. 1758, 1761 and 1762a).
32. In § 225.16:
a. Revise paragraphs (d)(1) through
(3);
■ b. Revise and republish paragraph
(e)(2); and
■ c. Revise paragraphs (e)(5) and (f)(3).
The revisions read as follows:
■
■
§ 225.16
Meal service requirements.
*
*
*
*
*
(d) * * *
(1) Breakfast. The minimum amount
of meal components to be served as
breakfast are as follows:
TABLE 1 TO PARAGRAPH (d)(1)—BREAKFAST MEAL PATTERN
Meal components
Minimum amount
Vegetables and Fruits
Vegetable(s) and/or fruit(s) ..............................................................................................
Full-strength vegetable or fruit juice or an equivalent quantity of any combination of
vegetable(s), fruit(s), and juice.
⁄ cup.1
⁄ cup (4 fluid ounces).
12
12
Bread and Bread Alternates 2
Bread or ...........................................................................................................................
Cornbread, biscuits, rolls, muffins, etc. or .......................................................................
Cold dry cereal or ............................................................................................................
Cooked cereal or cereal grains or ...................................................................................
Cooked pasta or noodle products or an equivalent quantity of any combination of
bread/bread alternate.
1 slice.
1 serving.3
3⁄4 cup or 1 ounce.4
1⁄2 cup.
1⁄2 cup.
Milk 5
Milk, fluid ..........................................................................................................................
1 cup (1⁄2 pint, 8 fluid ounces).
lotter on DSK11XQN23PROD with RULES3
Meats/Meat Alternates (Optional)
Lean meat or poultry or fish or ........................................................................................
Alternate protein product 6 or ...........................................................................................
Cheese or ........................................................................................................................
Egg (large) or ...................................................................................................................
Cooked dry beans, peas, or lentils or .............................................................................
Peanut butter or ...............................................................................................................
Yogurt, plain or flavored, unsweetened or sweetened or an equivalent quantity of any
combination of meats/meat alternates.
1 For
1 ounce.
1 ounce.
1 ounce.
1⁄2.
1⁄4 cup.
2 tablespoons.
4 ounces or 1⁄2 cup.
the purposes of the requirement outlined in the table, a cup means the standard measuring cup.
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2 Bread, pasta or noodle products, and cereal grains (such as rice, bulger, or corn grits) must be whole grain or enriched; cornbread, biscuits,
rolls, muffins, etc. must be made with whole grain or enriched meal or flour; cereal must be whole grain, enriched, or fortified.
3 Information on food crediting, including serving sizes and equivalents, may be found in FNS guidance.
4 Either volume (cup) or weight (ounces), whichever is less.
5 Milk must be served as a beverage or on cereal or used in part for each purpose.
6 Must meet the requirements in appendix A of this part.
(2) Lunch or supper. The minimum
amounts of meal components to be
served as lunch or supper are as follows:
TABLE 2 TO PARAGRAPH (d)(2)—LUNCH OR SUPPER MEAL PATTERN
Meal components
Minimum amount
Meats/Meat Alternates
Lean meat or poultry or fish or ........................................................................................
Alternate protein products 1 or .........................................................................................
Cheese or ........................................................................................................................
Egg (large) or ...................................................................................................................
Cooked dry beans, peas, or lentils or .............................................................................
Peanut butter or soynut butter or other nut or seed butters or .......................................
Peanuts or soynuts or tree nuts or seeds 3 or ................................................................
Yogurt, plain or flavored, unsweetened or sweetened or an equivalent quantity of any
combination of the above meats/meat alternates.
2 ounces.
2 ounces.
2 ounces.
1.
1⁄2 cup.2
4 tablespoons.
2 ounces.
8 ounces or 1 cup.
Vegetables and Fruits
Vegetables and/or fruits 4 .................................................................................................
⁄ cup total.
34
Bread and Bread Alternatives 5
Bread or ...........................................................................................................................
Cornbread, biscuits, rolls, muffins, etc. or .......................................................................
Cooked pasta or noodle products or ...............................................................................
Cooked cereal grains or an equivalent quantity of any combination of bread or bread
alternate.
1 slice.
1 serving.6
1⁄2 cup.
1⁄2 cup.
Milk
Milk, fluid, served as a beverage .....................................................................................
1 cup (1⁄2 pint, 8 fluid ounces).
1 Must
meet the requirements of appendix A of this part.
the purposes of the requirement outlined in this table, a cup means a standard measuring cup.
3 Information on crediting meats/meat alternates, including nuts and seeds, may be found in FNS guidance.
4 Serve 2 or more kinds of vegetable(s) and/or fruits or a combination of both. Full-strength vegetable or fruit juice may be offered to meet not
more than one-half of this requirement.
5 Bread, pasta or noodle products, and cereal grains (such as rice, bulgur, or corn grits) must be whole grain or enriched; cornbread, biscuits,
rolls, muffins, etc., must be made with whole grain or enriched meal or flour; cereal must be whole grain, enriched or fortified.
6 Information on food crediting, including serving sizes and equivalents, may be found in FNS guidance.
2 For
(3) Snacks. The minimum amounts of
meal components to be served as snacks
are as follows. Select two of the
following four components. (Juice may
not be served when milk is served as the
only other component.)
TABLE 3 TO PARAGRAPH (d)(3)—SNACK MEAL PATTERN
Meal components
Minimum amount
lotter on DSK11XQN23PROD with RULES3
Meats/Meat Alternates
Lean meat or poultry or fish or ........................................................................................
Alternate protein products 1 or .........................................................................................
Cheese or ........................................................................................................................
Egg (large) or ...................................................................................................................
Cooked dry beans, peas, or lentils or .............................................................................
Peanut butter or soynut butter or other nut or seed butters or .......................................
Peanuts or soynuts or tree nuts or seeds 3 or ................................................................
Yogurt, plain or flavored, unsweetened or sweetened or an equivalent quantity of any
combination of the above meats/meat alternates.
1 ounce.
1 ounce.
1 ounce.
1⁄2.
1⁄4 cup.2
2 tablespoons.
1 ounce.
4 ounces or 1⁄2 cup.
Vegetables and Fruits
Vegetable(s) and/or fruit(s) or ..........................................................................................
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⁄ cup.
34
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32087
TABLE 3 TO PARAGRAPH (d)(3)—SNACK MEAL PATTERN—Continued
Meal components
Minimum amount
Full-strength vegetable or fruit juice or an equivalent quantity or any combination of
vegetable(s), fruit(s), and juice.
⁄ cup (6 fluid ounces).
34
Bread and Bread Alternates 4
Bread or ...........................................................................................................................
Cornbread, biscuits, rolls, muffins, etc. or .......................................................................
Cold dry cereal or ............................................................................................................
Cooked cereal or .............................................................................................................
Cooked cereal grains or an equivalent quantity of any combination of bread/bread alternate.
1 slice.
1 serving.5
3⁄4 cup or 1 ounce.6
1⁄2 cup.
1⁄2 cup.
Milk 7
Milk, fluid ..........................................................................................................................
1 cup (1⁄2 pint, 8 fluid ounces).
1 Must
meet the requirements in appendix A of this part.
the purposes of the requirement outlined in this table, a cup means a standard measuring cup.
3 Information on crediting meats/meat alternates, including nuts and seeds, may be found in FNS guidance.
4 Bread, pasta or noodle products, and cereal grains (such as rice, bulgur, or corn grits) must be whole grain or enriched; cornbread, biscuits,
rolls, muffins, etc., must be made with whole grain or enriched meal or flour; cereal must be whole grain, enriched, or fortified.
5 Information on food crediting, including serving sizes and equivalents, may be found in FNS guidance.
6 Either volume (cup) or weight (ounces), whichever is less.
7 Milk should be served as a beverage or on cereal, or used in part for each purpose.
2 For
(e) * * *
(2) Cooked dry beans, peas, and
lentils may be used as a meat alternate
or as a vegetable, but they may not be
used to meet both component
requirements in a meal.
*
*
*
*
*
(5) Nuts and seeds and their butters
are allowed as meats/meat alternates.
Acorns, chestnuts, and coconuts do not
credit as meat alternates due to their
low protein content. Nut and seed meals
or flours may credit only if they meet
the requirements for alternate protein
products established in appendix A to
this part.
(f) * * *
(3) Bread and bread alternative
substitutions. In American Samoa,
Guam, Hawaii, Puerto Rico, and the U.S.
Virgin Islands, and for sponsors in any
State that serve primarily American
Indian or Alaska Native children, any
vegetable, including vegetables such as
breadfruit, prairie turnips, plantains,
sweet potatoes, and yams, may be
served to meet the bread and bread
alternatives requirement.
*
*
*
*
*
■ 33. In § 225.17, revise paragraph (e)(1)
to read as follows:
§ 225.17
Procurement standards.
lotter on DSK11XQN23PROD with RULES3
*
*
*
*
*
(e) * * *
(1) Sponsors participating in the
Program may apply a geographic
preference when procuring unprocessed
locally grown or locally raised
agricultural products, including the use
of ‘‘locally grown’’, ‘‘locally raised’’, or
‘‘locally caught’’ as procurement
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specifications or selection criteria for
unprocessed or minimally processed
food items. When utilizing the
geographic preference to procure such
products, the sponsor making the
purchase has the discretion to
determine the local area to which the
geographic preference option will be
applied, so long as there are an
appropriate number of qualified firms
able to compete;
*
*
*
*
*
PART 226—CHILD AND ADULT CARE
FOOD PROGRAM
34. The authority citation for part 226
continues to read as follows:
■
Authority: Secs. 9, 11, 14, 16, and 17,
Richard B. Russell National School Lunch
Act, as amended (42 U.S.C. 1758, 1759a,
1762a, 1765 and 1766).
35. In § 226.2:
a. Revise the definition of
‘‘Functionally impaired adult’’;
■ b. Add in alphabetical order a
definition for ‘‘Meal component’’;
■ c. Revise the definition of ‘‘Persons
with disabilities’’;
■ d. Add in alphabetical order a
definition for ‘‘State licensed healthcare
professional’’; and
■ e. Add in alphabetical order a
definition for ‘‘Whole grain-rich’’.
The revisions and additions read as
follows:
■
■
§ 226.2
Definitions.
*
*
*
*
*
Functionally impaired adult means
chronically impaired disabled persons
18 years of age or older, including
persons with neurological and organic
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brain dysfunction, with physical or
mental impairments to the extent that
their capacity for independence and
their ability to carry out activities of
daily living is markedly limited.
Activities of daily living include, but are
not limited to, adaptive activities such
as cleaning, shopping, cooking, taking
public transportation, maintaining a
residence, caring appropriately for one’s
grooming or hygiene, using a telephone,
or using a post office. Marked
limitations refer to the severity of
impairment, and not the number of
limited activities, and occur when the
degree of limitation is such as to
seriously interfere with the ability to
function independently.
*
*
*
*
*
Meal component meals means one of
the food groups which comprise
reimbursable meals. The meal
components are: fruits, vegetables,
grains, meats/meat alternates, and fluid
milk.
*
*
*
*
*
Persons with disabilities means
persons of any age who have a physical
or mental impairment that substantially
limits one or more major life activities,
have a record of such an impairment, or
have been regarded as having such an
impairment, and who are enrolled in an
institution or child care facility serving
a majority of persons who are age 18
and under.
*
*
*
*
*
State licensed healthcare professional
means an individual who is authorized
to write medical prescriptions under
State law. This may include, but is not
limited to, a licensed physician, nurse
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practitioner, or physician’s assistant,
depending on State law.
*
*
*
*
*
Whole grain-rich is the term
designated by FNS to indicate that the
grain content of a product is between 50
and 100 percent whole grain with any
remaining grains being enriched.
*
*
*
*
*
■ 36. Revise and republish § 226.20 to
read as follows:
lotter on DSK11XQN23PROD with RULES3
§ 226.20
Requirements for meals.
(a) Meal components. Except as
otherwise provided in this section, each
meal served in the Program must
contain, at a minimum, the indicated
components:
(1) Fluid milk. Fluid milk must be
served as a beverage or on cereal, or a
combination of both. Lactose-free and
reduced-lactose milk that meet the fat
content and flavor specifications for
each age group may also be offered.
(i) Children 1 year old. Unflavored
whole milk must be served.
(ii) Children 2 through 5 years old.
Either unflavored low-fat (1 percent) or
unflavored fat-free (skim) milk must be
served.
(iii) Children 6 years old and older.
Low-fat (1 percent fat or less) or fat-free
(skim) milk must be served. Milk may
be unflavored or flavored.
(iv) Adults. Low-fat (1 percent fat or
less) or fat-free (skim) milk must be
served. Milk may be unflavored or
flavored. Six ounces (weight) or 3⁄4 cup
(volume) of yogurt may be used to fulfill
the equivalent of 8 ounces of fluid milk
once per day. Yogurt may be counted as
either a fluid milk substitute or as a
meat alternate, but not as both in the
same meal.
(2) Vegetables. A serving may contain
fresh, frozen, or canned vegetables, dry
beans, peas, and lentils, or vegetable
juice. All vegetables are credited based
on their volume as served, except that
1 cup of leafy greens counts as 1⁄2 cup
of vegetables.
(i) Pasteurized, full-strength vegetable
juice may be used to fulfill the entire
requirement. Vegetable juice or fruit
juice may only be served at one meal,
including snack, per day.
(ii) Cooked dry beans, peas, and
lentils may be counted as either a
vegetable or as a meat alternate, but not
as both in the same dish.
(3) Fruits. A serving may contain
fresh, frozen, canned, dried fruits, or
fruit juice. All fruits are based on their
volume as served, except that 1⁄4 cup of
dried fruit counts as 1⁄2 cup of fruit.
(i) Pasteurized, full-strength fruit juice
may be used to fulfill the entire
requirement. Fruit juice or vegetable
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juice may only be served at one meal,
including snack, per day.
(ii) A vegetable may be used to meet
the entire fruit requirement at lunch and
supper. When two vegetables are served
at lunch or supper, two different kinds
of vegetables must be served.
(4) Grains—(i) Enriched and whole
grains. All grains must be made with
enriched or whole grain meal or flour.
(A) At least one serving per day,
across all eating occasions of bread,
cereals, and grains, must be whole
grain-rich, as defined in § 226.2. Whole
grain-rich is the term designated by FNS
to indicate that the grain content of a
product is between 50 and 100 percent
whole grain with any remaining grains
being enriched.
(B) A serving may contain whole
grain-rich or enriched bread, cornbread,
biscuits, rolls, muffins, and other bread
products; or whole grain-rich, enriched,
or fortified cereal grain, cooked pasta or
noodle products, or breakfast cereal; or
any combination of these foods.
(ii) Breakfast cereals. Breakfast cereals
are those as defined by the Food and
Drug Administration in 21 CFR
170.3(n)(4) for ready-to-eat and instant
and regular hot cereals. Through
September 30, 2025, breakfast cereals
must contain no more than 6 grams of
total sugars per dry ounce. By October
1, 2025, breakfast cereals must contain
no more than 6 grams of added sugars
per dry ounce.
(iii) Desserts. Grain-based desserts do
not count toward meeting the grains
requirement.
(5) Meats/meat alternates—(i) Serving
meats/meat alternates. Meats/meat
alternates must be served in a main
dish, or in a main dish and one other
menu item. The creditable quantity of
meats/meat alternates must be the
edible portion as served of:
(A) Lean meat, poultry, or fish;
(B) Alternate protein products;
(C) Cheese, or an egg;
(D) Cooked dry beans, peas, and
lentils;
(E) Peanut butter; or
(F) Any combination of these foods.
(ii) Nuts and seeds. Nuts and seeds
and their butters are allowed as meat
alternates. Information on crediting nuts
and seeds may be found in FNS
guidance.
(A) Nut and seed meals or flours may
credit only if they meet the
requirements for alternate protein
products established in appendix A of
this part.
(B) Acorns, chestnuts, and coconuts
do not credit as meat alternates because
of their low protein and iron content.
(iii) Yogurt. Four ounces (weight) or
1⁄2 cup (volume) of yogurt equals one
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ounce of the meats/meat alternates
component. Yogurt may be used to meet
all or part of the meats/meat alternates
component as follows:
(A) Yogurt may be plain or flavored,
unsweetened, or sweetened;
(B) Through September 30, 2025,
yogurt must contain no more than 23
grams of total sugars per 6 ounces. By
October 1, 2025, yogurt must contain no
more than 12 grams of added sugars per
6 ounces (2 grams of added sugars per
ounce);
(C) Noncommercial or commercial
standardized yogurt products, such as
frozen yogurt, drinkable yogurt
products, homemade yogurt, yogurt
flavored products, yogurt bars, yogurt
covered fruits or nuts, or similar
products are not creditable; and
(D) For adults, yogurt may only be
used as a meat alternate when it is not
also being used as a fluid milk
substitute in the same meal.
(iv) Tofu and soy products.
Commercial tofu and soy products may
be used to meet all or part of the meats/
meat alternates component in
accordance with FNS guidance and
appendix A of this part. Noncommercial and non-standardized tofu
and soy products cannot be used.
(v) Beans, peas, and lentils. Cooked
dry beans, peas, and lentils may be used
to meet all or part of the meats/meat
alternates component. Beans, peas, and
lentils include black beans, garbanzo
beans, lentils, kidney beans, mature
lima beans, navy beans, pinto beans,
and split peas. Beans, peas, and lentils
may be counted as either a meat/meat
alternate or as a vegetable, but not as
both in the same dish.
(vi) Other meat alternates. Other meat
alternates, such as cheese, eggs, and nut
butters may be used to meet all or part
of the meats/meat alternates component.
(b) Infant meals—(1) Feeding infants.
Foods in reimbursable meals served to
infants ages birth through 11 months
must be of a texture and a consistency
that are appropriate for the age and
development of the infant being fed.
Foods must also be served during a span
of time consistent with the infant’s
eating habits.
(2) Breastmilk and iron-fortified
formula. Breastmilk or iron-fortified
infant formula, or portions of both, must
be served to infants birth through 11
months of age. An institution or facility
must offer at least one type of ironfortified infant formula. Meals
containing breastmilk or iron-fortified
infant formula supplied by the
institution or facility, or by the parent
or guardian, are eligible for
reimbursement.
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(i) Parent or guardian provided
breastmilk or iron-fortified formula. A
parent or guardian may choose to accept
the offered formula, or decline the
offered formula and supply expressed
breastmilk or an iron-fortified infant
formula instead. Meals in which a
mother directly breastfeeds her child at
the child care institution or facility are
also eligible for reimbursement. When a
parent or guardian chooses to provide
breastmilk or iron-fortified infant
formula and the infant is consuming
solid foods, the institution or facility
must supply all other required meal
components in order for the meal to be
reimbursable.
(ii) Breastfed infants. For some
breastfed infants who regularly consume
less than the minimum amount of
breastmilk per feeding, a serving of less
than the minimum amount of breastmilk
may be offered. In these situations,
additional breastmilk must be offered at
a later time if the infant will consume
more.
(3) Solid foods. The gradual
introduction of solid foods may begin at
six months of age, or before or after six
months of age if it is developmentally
appropriate for the infant and in
accordance with FNS guidance.
(4) Infant meal pattern. Infant meals
must have, at a minimum, each of the
food components indicated, in the
amount that is appropriate for the
infant’s age.
(i) Birth through 5 months—(A)
Breakfast. Four to 6 fluid ounces of
breastmilk or iron-fortified infant
formula, or portions of both.
(B) Lunch or supper. Four to 6 fluid
ounces of breastmilk or iron-fortified
infant formula, or portions of both.
(C) Snack. Four to 6 fluid ounces of
breastmilk or iron-fortified infant
formula, or portions of both.
(ii) 6 through 11 months. Breastmilk
or iron-fortified formula, or portions of
both, is required. Meals are
reimbursable when institutions and
facilities provide all the components in
the meal pattern that the infant is
developmentally ready to accept.
(A) Breakfast, lunch, or supper. Six to
8 fluid ounces of breastmilk or iron-
32089
fortified infant formula, or portions of
both; and 0 to 1⁄2 ounce equivalent of
iron-fortified dry infant cereal; or 0–4
tablespoons meat, fish, poultry, whole
egg, cooked dry beans, peas, and lentils;
or 0 to 2 ounces (weight) of cheese; or
0 to 4 ounces (volume) of cottage
cheese; or 0 to 4 ounces of yogurt; and
0 to 2 tablespoons of vegetable, fruit, or
portions of both. Fruit juices and
vegetable juices must not be served.
(B) Snack. Two to 4 fluid ounces of
breastmilk or iron-fortified infant
formula; and 0 to 1⁄2 ounce equivalent
bread; or 0–1⁄4 ounce equivalent
crackers; or 0–1⁄2 ounce equivalent
infant cereal or ready-to-eat cereals; and
0 to 2 tablespoons of vegetable or fruit,
or portions of both. Fruit juices and
vegetable juices must not be served. A
serving of grains must be whole grainrich, enriched meal, or enriched flour.
(5) Infant meal pattern table. The
minimum amounts of meal components
to serve to infants, as described in
paragraph (b)(4) of this section, are:
TABLE 1 TO PARAGRAPH (b)(5)—INFANT MEAL PATTERNS
Infants
Breakfast, Lunch, or
Supper.
Snack ............................
Birth through 5 months
6 through 11 months
4–6 fluid ounces breast milk 1 or formula 2 ......
4–6 fluid ounces breast milk 1 or formula 2 ......
6–8 fluid ounces breast milk 1 or formula; 2 and
0–1⁄2 ounce equivalent infant cereal; 2 3 or
0–4 tablespoons meat, fish, poultry, whole egg, cooked dry beans,
peas, and lentils; or
0–2 ounces of cheese; or
0–4 ounces (volume) of cottage cheese; or
0–4 ounces or 1⁄2 cup of yogurt; 4 or a combination of the above; 5
and
0–2 tablespoons vegetable or fruit, or a combination of both.5 6
2–4 fluid ounces breast milk 1 or formula; 2 and
0–1⁄2 ounce equivalent bread; 3 7 or
0–1⁄4 ounce equivalent crackers; 3 7 or
0–1⁄2 ounce equivalent infant cereal; 2 3 or
0–1⁄4 ounce equivalent ready-to-eat breakfast cereal; 3 5 7 8 and
0–2 tablespoons vegetable or fruit, or a combination of both.5 6
lotter on DSK11XQN23PROD with RULES3
1 Breast milk or formula, or portions of both, must be served; however, it is recommended that breast milk be served from birth through 11
months. For some breastfed infants who regularly consume less than the minimum amount of breast milk per feeding, a serving of less than the
minimum amount of breast milk may be offered, with additional breast milk offered at a later time if the infant will consume more.
2 Infant formula and dry infant cereal must be iron-fortified.
3 Information on crediting grain items may be found in FNS guidance.
4 Through September 30, 2025, yogurt must contain no more than 23 grams of total sugars per 6 ounces. By October 1, 2025, yogurt must
contain no more than 12 grams of added sugars per 6 ounces (2 grams of added sugars per ounce).
5 A serving of this component is required when the infant is developmentally ready to accept it.
6 Fruit and vegetable juices must not be served.
7 A serving of grains must be whole grain-rich, enriched meal, enriched flour, bran, or germ.
8 Through September 30, 2025, breakfast cereals must contain no more than 6 grams of total sugars per dry ounce. By October 1, 2025,
breakfast cereals must contain no more than 6 grams of added sugars per dry ounce.
(c) Meal patterns for children age 1
through 18 and adult participants.
Institutions and facilities must serve the
meal components and quantities
specified in the following meal patterns
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Jkt 262001
for children and adult participants in
order to qualify for reimbursement.
(1) Breakfast. Fluid milk, vegetables
or fruit, or portions of both, and grains
are required components of the
breakfast meal. Meats/meat alternates
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may be offered to meet the entire grains
requirement a maximum of three times
per week. The minimum amounts of
meal components to be served at
breakfast are as follows:
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TABLE 2 TO PARAGRAPH (c)(1)—CHILD AND ADULT CARE FOOD PROGRAM BREAKFAST
[Select the appropriate components for a reimbursable meal]
Minimum quantities
Meal components and food items 1
Fluid Milk ..............................................
Vegetables, fruits, or portions of both 7
Grains 8 .................................................
Ages 1–2
Ages 3–5
Ages 6–12
Ages 13–18 2
ounces 3
ounces 4
ounces 5
ounces 5
4 fluid
...........
1⁄4 cup .........................
1⁄2 ounce equivalent ...
6 fluid
...........
1⁄2 cup .........................
1⁄2 ounce equivalent ...
8 fluid
...........
1⁄2 cup .........................
1 ounce equivalent .....
8 fluid
...........
1⁄2 cup .........................
1 ounce equivalent .....
Adult participants
8 fluid ounces.6
1⁄2 cup.
2 ounce equivalents.
1 Must
serve all three components for a reimbursable meal. Offer versus serve is an option for at-risk afterschool care and adult day care centers.
afterschool programs and emergency shelters may need to serve larger portions to children ages 13 through 18 to meet their nutritional needs.
serve unflavored whole milk to children age 1.
4 Must serve unflavored milk to children 2 through 5 years old. The milk must be fat-free, skim, low-fat, or 1 percent or less.
5 May serve unflavored or flavored milk to children ages 6 and older. The milk must be fat-free, skim, low-fat, or 1 percent or less.
6 May serve unflavored or flavored milk to adults. The milk must be fat-free, skim, low-fat, or 1 percent or less. Yogurt may be offered in the place of milk once per
day for adults. Yogurt may count as either a fluid milk substitute or as a meat alternate, but not both, in the same meal. Six ounces (by weight) or 3⁄4 cup (by volume)
of yogurt is the equivalent of 8 ounces of fluid milk. Through September 30, 2025, yogurt must contain no more than 23 grams of total sugars per 6 ounces. By October 1, 2025, yogurt must contain no more than 12 grams of added sugars per 6 ounces (2 grams of added sugars per ounce).
7 Juice must be pasteurized. Full-strength juice may only be offered to meet the vegetable or fruit requirement at one meal or snack, per day.
8 Must serve at least one whole grain-rich serving, across all eating occasions, per day. Grain-based desserts may not be used to meet the grains requirement.
Meats/meat alternates may be offered in place of the entire grains requirement, up to 3 times per week at breakfast. One ounce equivalent of meats/meat alternates
credits equal to one ounce equivalent of grains. Through September 30, 2025, breakfast cereals must contain no more than 6 grams of total sugars per dry ounce. By
October 1, 2025, breakfast cereals must contain no more than 6 grams of added sugars per dry ounce. Information on crediting grain items and meats/meat alternates may be found in FNS guidance.
2 At-risk
3 Must
(2) Lunch and supper. Fluid milk,
meats/meat alternates, vegetables, fruits,
and grains are required components in
the lunch and supper meals. The
minimum amounts of meal components
to be served at lunch and supper are as
follows:
TABLE 3 TO PARAGRAPH (c)(2)—CHILD AND ADULT CARE FOOD PROGRAM LUNCH AND SUPPER
[Select the appropriate components for a reimbursable meal]
Minimum quantities
Meal components and food items 1
Fluid milk ..............................................
Meats/meat alternates 7 .......................
Vegetables 8 .........................................
Fruits 8 ..................................................
Grains 9 .................................................
Ages 1–2
Ages 3–5
Ages 6–12
Ages 13–18 2
ounces 3
ounces 4
ounces 5
ounces 5
4 fluid
...........
1 ounce equivalent .....
1⁄8 cup .........................
1⁄8 cup .........................
1⁄2 ounce equivalent ...
6 fluid
...........
11⁄2 ounce equivalents
1⁄4 cup .........................
1⁄4 cup .........................
1⁄2 ounce equivalent ...
8 fluid
...........
2 ounce equivalents ...
1⁄2 cup .........................
1⁄4 cup .........................
1 ounce equivalent .....
8 fluid
...........
2 ounce equivalents ...
1⁄2 cup .........................
1⁄4 cup .........................
1 ounce equivalent .....
Adult participants
8 fluid ounces.6
2 ounce equivalents.
1⁄2 cup.
1⁄2 cup.
2 ounce equivalents.
1 Must
serve all five components for a reimbursable meal. Offer versus serve is an option for at-risk afterschool care and adult day care centers.
afterschool programs and emergency shelters may need to serve larger portions to children ages 13 through 18 to meet their nutritional needs.
serve unflavored whole milk to children age 1.
4 Must serve unflavored milk to children 2 through 5 years old. The milk must be fat-free, skim, low-fat, or 1 percent or less.
5 May serve unflavored or flavored milk to children ages 6 and older. The milk must be fat-free, skim, low-fat, or 1 percent or less.
6 May serve unflavored or flavored milk to adults. The milk must be fat-free, skim, low-fat, or 1 percent or less. Yogurt may be offered in place of milk once per day
for adults. Yogurt may count as either a fluid milk substitute or as a meat alternate, but not both, in the same meal. Six ounces (by weight) or 3⁄4 cup (by volume) of
yogurt is the equivalent of 8 ounces of fluid milk. A serving of fluid milk is optional for suppers served to adult participants.
7 Alternate protein products must meet the requirements in appendix A to this part. Through September 30, 2025, yogurt must contain no more than 23 grams of
total sugars per 6 ounces. By October 1, 2025, yogurt must contain no more than 12 grams of added sugars per 6 ounces (2 grams of added sugars per ounce). Information on crediting meats/meat alternates may be found in FNS guidance.
8 Juice must be pasteurized. Full-strength juice may only be offered to meet the vegetable or fruit requirement at one meal or snack, per day. A vegetable may be
offered to meet the entire fruit requirement. When two vegetables are served at lunch or supper, two different kinds of vegetables must be served.
9 Must serve at least one whole grain-rich serving, across all eating occasions, per day. Grain-based desserts may not be used to meet the grains requirement.
Through September 30, 2025, breakfast cereals must contain no more than 6 grams of total sugars per dry ounce. By October 1, 2025, breakfast cereal must contain
no more than 6 grams of added sugars per dry ounce. Information on crediting grain items may be found in FNS guidance.
2 At-risk
3 Must
(3) Snack. Serve two of the following
five components: Fluid milk, meats/
meat alternates, vegetables, fruits, and
grains. Fruit juice, vegetable juice, and
milk may comprise only one component
of the snack. The minimum amounts of
meal components to be served at snacks
are as follows:
TABLE 4 TO PARAGRAPH (c)(3)—CHILD AND ADULT CARE FOOD PROGRAM SNACK
[Select two of the five components for a reimbursable snack]
Minimum quantities
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Meal components and food items 1
Fluid milk ..............................................
Meats/meat alternates 7 .......................
Vegetables 8 .........................................
Fruits 8 ..................................................
Grains 9 .................................................
Ages 1–2
Ages 3–5
Ages 6–12
Ages 13–18 2
4 fluid ounces 3 ...........
1⁄2 ounce equivalent ...
1⁄2 cup .........................
1⁄2 cup .........................
1⁄2 ounce equivalent ...
4 fluid ounces 4 ...........
1⁄2 ounce equivalent ...
1⁄2 cup .........................
1⁄2 cup .........................
1⁄2 ounce equivalent ...
8 fluid ounces 5 ...........
1 ounce equivalent .....
3⁄4 cup .........................
3⁄4 cup .........................
1 ounce equivalent .....
8 fluid ounces 5 ...........
1 ounce equivalent .....
3⁄4 cup .........................
3⁄4 cup .........................
1 ounce equivalent .....
1 Must
Adult participants
8 fluid ounces.6
1 ounce equivalent.
1⁄2 cup.
1⁄2 cup.
1 ounce equivalent.
serve two of the five components for a reimbursable snack. Milk and juice may not be served as the only two items in a reimbursable snack.
afterschool programs and emergency shelters may need to serve larger portions to children ages 13 through 18 to meet their nutritional needs.
serve unflavored whole milk to children age 1.
4 Must serve unflavored milk to children 2 through 5 years old. The milk must be fat-free, skim, low-fat, or 1 percent or less.
5 May serve unflavored or flavored milk to children ages 6 and older. The milk must be fat-free, skim, low-fat, or 1 percent or less.
6 May serve unflavored or flavored milk to adults. The milk must be fat-free, skim, low-fat, or 1 percent or less. Yogurt may be offered in place of milk, once per day
for adults. Yogurt may count as either a fluid milk substitute or as a meat alternate, but not both, in the same meal. Six ounces (by weight) or 3⁄4 cup (by volume) of
yogurt is the equivalent of 8 ounces of fluid milk.
2 At-risk
3 Must
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32091
7 Alternate protein products must meet the requirements in appendix A to this part. Through September 30, 2025, yogurt must contain no more than 23 grams of
total sugars per 6 ounces. By October 1, 2025, yogurt must contain no more than 12 grams of added sugars per 6 ounces (2 grams of added sugars per ounce). Information on crediting meats/meat alternates may be found in FNS guidance.
8 Juice must be pasteurized. Full-strength juice may only be offered to meet the vegetable or fruit requirement at one meal or snack, per day.
9 Must serve at least one whole grain-rich serving, across all eating occasions, per day. Grain-based desserts may not be used to meet the grains requirement.
Through September 30, 2025, breakfast cereals must contain no more than 6 grams of total sugars per dry ounce. By October 1, 2025, breakfast cereal must contain
no more than 6 grams of added sugar per dry ounce. Information on crediting grain items may be found in FNS guidance.
(d) Food preparation. Deep-fat fried
foods that are prepared on-site cannot
be part of the reimbursable meal. For
this purpose, deep-fat frying means
cooking by submerging food in hot oil
or other fat. Foods that are pre-fried,
flash-fried, or par-fried by a commercial
manufacturer may be served, but must
be reheated by a method other than
frying.
(e) Unavailability of fluid milk—(1)
Temporary. When emergency
conditions prevent an institution or
facility normally having a supply of
milk from temporarily obtaining milk
deliveries, the State agency may
approve the service of breakfast,
lunches, or suppers without milk during
the emergency period.
(2) Continuing. When an institution or
facility is unable to obtain a supply of
milk on a continuing basis, the State
agency may approve service of meals
without milk, provided an equivalent
amount of canned, whole dry or fat-free
dry milk is used in the preparation of
the components of the meal set forth in
paragraph (a) of this section. (f) Grain
substitutions. In American Samoa,
Guam, Hawaii, Puerto Rico, and the U.S.
Virgin Islands, and in institutions or
facilities in any State that serve
primarily American Indian or Alaska
Native participants, any vegetable,
including vegetables such as breadfruit,
prairie turnips, plantains, sweet
potatoes, and yams, may be served to
meet the grains requirement.
(g) Modifications and variations in
reimbursable meals and snacks as
described in paragraphs (a) through (c)
of this section—(1) Modifications for
disability reasons. Institutions and
facilities must make meal modifications
including substitutions in meals and
snacks described in this section for
participants with a disability and whose
disability restricts their diet. The
modification requested must be related
to the disability and must be offered at
no additional cost to the child or adult
participant.
(i) In order to receive Federal
reimbursement when a modified meal
does not meet the meal pattern
requirements specified in this section,
the institution or facility must obtain
from the household a written medical
statement signed by a State licensed
healthcare professional. By October 1,
2025, institutions and facilities must
also accept a medical statement signed
by a registered dietitian. The medical
statement must provide sufficient
information about the child or adult
participant’s dietary restrictions, such as
foods to be omitted and recommended
alternatives, if appropriate. Modified
meals that meet the meal pattern
requirements in this section are
reimbursable with or without a medical
statement.
(ii) Institutions and facilities must
ensure that parents and guardians, and
their children when age-appropriate at
institution or facility discretion; adult
participants; and persons on behalf of
adult participants have notice of the
procedure for requesting meal
modifications for disabilities and the
process for procedural safeguards
related to meal modifications for
disabilities. See §§ 15b.6(b) and 15b.25
of this title.
(iii) Expenses incurred when making
meal modifications that exceed Program
reimbursement rates must be paid by
the institution or facility; costs may be
paid from the institution or facility’s
nonprofit food service account.
(iv) A parent, guardian, adult
participant, or a person on behalf of an
adult participant may supply one or
more components of the reimbursable
meal as long as the institution or facility
provides at least one required meal
component.
(2) Variations for non-disability
reasons. (i) Institutions and facilities
should consider participants’ dietary
preferences when planning and
preparing meals and snacks. Any
variations must be consistent with the
meal pattern requirements specified in
this section.
(ii) Expenses incurred from variations
that exceed program reimbursement
rates must be paid by the institution or
facility; costs may be paid from the
institution or facility’s nonprofit food
service account.
(iii) A parent, guardian, adult
participant, or a person on behalf of an
adult participant may supply one
component of the reimbursable meal as
long as the component meets the
requirements described in this section
and the institution or facility provides
the remaining components.
(3) Fluid milk substitutes for nondisability reasons. (i) An institution or
facility may offer fluid milk substitutes
based on a written request from a child’s
parent or guardian, an adult participant,
a person on behalf of an adult
participant, a State licensed healthcare
professional, or registered dietitian for
participants with dietary needs that are
not disabilities that identifies the reason
for the substitute. An institution or
facility choosing to offer fluid milk
substitutes for a non-disability reason is
not required to offer the specific fluid
milk substitutes requested but may offer
the fluid milk substitutes of its choice,
provided the fluid milk substitutes
offered meet the requirements of
paragraph (g)(3)(ii) of this section. For
disability-related meal modifications,
see paragraph (g)(1) of this section.
(ii) If an institution or facility chooses
to offer one or more fluid milk
substitutes for non-disability reasons,
the fluid milk substitutes must provide,
at a minimum, the nutrients listed in the
following table. Fluid milk substitutes
must be fortified in accordance with
fortification guidelines issued by the
Food and Drug Administration.
TABLE 5 TO PARAGRAPH (g)(3)(ii)—NUTRIENT REQUIREMENTS FOR FLUID MILK SUBSTITUTES
Per cup
(8 fl. oz.)
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Nutrient
Calcium .....................................................................................................................
Protein .......................................................................................................................
Vitamin A ...................................................................................................................
Vitamin D ...................................................................................................................
Magnesium ................................................................................................................
Phosphorus ...............................................................................................................
Potassium ..................................................................................................................
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276 mg.
8 g.
150 mcg. retinol activity equivalents (RAE).
2.5 mcg.
24 mg.
222 mg.
349 mg.
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TABLE 5 TO PARAGRAPH (g)(3)(ii)—NUTRIENT REQUIREMENTS FOR FLUID MILK SUBSTITUTES—Continued
Per cup
(8 fl. oz.)
Nutrient
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Riboflavin ...................................................................................................................
Vitamin B–12 .............................................................................................................
(iii) Expenses incurred when
providing fluid milk substitutes that
exceed Program reimbursements must
be paid by the participating institution
or facility; costs may be paid from the
institution or facility’s nonprofit food
service account.
(h) Special variations. FNS may
approve variations in the meal
components of the meals on an
experimental or continuing basis in any
institution or facility where there is
evidence that such variations are
nutritionally sound and are necessary to
meet ethnic, religious, economic, or
physical needs.
(i) Meals prepared in schools. The
State agency must allow institutions and
facilities which serve meals to children
5 years old and older and are prepared
in schools participating in the National
School Lunch and School Breakfast
Programs to substitute the meal pattern
requirements of the regulations
governing those Programs (parts 210 and
220 of this chapter, respectively) for the
meal pattern requirements contained in
this section.
(j) Meal planning. Institutions and
facilities must plan for and order meals
on the basis of current participant
trends, with the objective of providing
only one meal per participant at each
meal service. Records of participation
and of ordering or preparing meals must
be maintained to demonstrate positive
action toward this objective. In
recognition of the fluctuation in
participation levels which makes it
difficult to estimate precisely the
number of meals needed and to reduce
the resultant waste, any excess meals
that are ordered may be served to
participants and may be claimed for
reimbursement, unless the State agency
determines that the institution or
facility has failed to plan and prepare or
order meals with the objective of
providing only one meal per participant
at each meal service.
(k) Time of meal service. State
agencies may require any institution or
facility to allow a specific amount of
time to elapse between meal services or
require that meal services not exceed a
specified duration.
(l) Sanitation. Institutions and
facilities must ensure that in storing,
preparing, and serving food proper
sanitation and health standards are met
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0.44 mg.
1.1 mcg.
which conform with all applicable State
and local laws and regulations.
Institutions and facilities must ensure
that adequate facilities are available to
store food or hold meals.
(m) Donated commodities.
Institutions and facilities must
efficiently use in the Program any foods
donated by the Department and
accepted by the institution or facility.
(n) Family style meal service. Family
style is a type of meal service which
allows children and adults to serve
themselves from common platters of
food with the assistance of supervising
adults. Institutions and facilities
choosing to exercise this option must be
in compliance with the following
practices:
(1) A sufficient amount of prepared
food must be placed on each table to
provide the full required portions of
each of the components, as outlined in
paragraphs (c)(1) and (2) of this section,
for all children or adults at the table and
to accommodate supervising adults if
they wish to eat with the children and
adults.
(2) Children and adults must be
allowed to serve the meal components
themselves, with the exception of fluids
(such as milk). During the course of the
meal, it is the responsibility of the
supervising adults to actively encourage
each child and adult to serve themselves
the full required portion of each meal
component of the meal pattern.
Supervising adults who choose to serve
the fluids directly to the children or
adults must serve the required
minimum quantity to each child or
adult.
(3) Institutions and facilities which
use family style meal service may not
claim second meals for reimbursement.
(o) Offer versus Serve. (1) Each adult
day care center and at-risk afterschool
program must offer its participants all of
the required food servings as set forth in
paragraphs (c)(1) and (2) of this section.
However, at the discretion of the adult
day care center or at-risk afterschool
program, participants may be permitted
to decline:
(i) For adults—(A) One of the four
food items required at breakfast (one
serving of fluid milk; one serving of
vegetable or fruit, or a combination of
both; and two servings of grains, or meat
or meat alternates);
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(B) Two of the five meal components
required at lunch (fluid milk;
vegetables; fruit; grain; and meat or meat
alternate); and
(C) One of the four meal components
required at supper (vegetables; fruit;
grain; and meat or meat alternate).
(ii) For children. Two of the five meal
components required at supper (fluid
milk; vegetables; fruit; grain; and meat
or meat alternate).
(2) In pricing programs, the price of
the reimbursable meal must not be
affected if a participant declines a food
item.
(p) Prohibition on using foods and
beverages as punishments or rewards.
Meals served under this part must
contribute to the development and
socialization of children. Institutions
and facilities must not use foods and
beverages as punishments or rewards.
(q) Severability. If any provision of
this section is held to be invalid or
unenforceable by its terms, or as applied
to any person or circumstances, it shall
be severable from this section and not
affect the remainder thereof. In the
event of such holding of invalidity or
unenforceability of a provision, the meal
pattern requirements covered by that
provision reverts to the version that
immediately preceded the invalidated
provision.
37. In § 226.22, revise paragraph (c)(1)
to read as follows:
■
§ 226.22
Procurement standards.
*
*
*
*
*
(c) * * *
(1) Institutions participating in the
Program may apply a geographic
preference when procuring unprocessed
locally grown or locally raised
agricultural products, including the use
of ‘‘locally grown’’, ‘‘locally raised’’, or
‘‘locally caught’’ as procurement
specifications or selection criteria for
unprocessed or minimally processed
food items. When utilizing the
geographic preference to procure such
products, the institution making the
purchase has the discretion to
determine the local area to which the
geographic preference option will be
applied so long as there are an
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Federal Register / Vol. 89, No. 81 / Thursday, April 25, 2024 / Rules and Regulations
appropriate number of qualified firms
able to compete;
*
*
*
*
*
Cynthia Long,
Administrator, Food and Nutrition Service.
Note: The following appendix will not
appear in the Code of Federal Regulations.
Appendix A—Regulatory Impact
Analysis
I. Statement of Need
On February 7, 2023, USDA published a
proposed rule, Child Nutrition Programs:
Revisions to Meal Patterns Consistent with
the 2020 Dietary Guidelines for Americans, to
further align school meal nutrition
requirements with the goals of the Dietary
Guidelines for Americans, 2020–2025
(Dietary Guidelines).1 USDA is now
finalizing that proposed rule with the
expectation that these changes will continue
to improve the health of meals and snacks
served in child nutrition programs in the
coming years. To develop the rule, USDA
considered broad stakeholder input,
including written public comments received
in response to the proposed rule, and a
comprehensive review of the latest Dietary
Guidelines. The rule represents the next stage
of the rulemaking process to permanently
update and improve school meal pattern
requirements. This rule includes a focus on
nutrition requirements for sodium, whole
grains, and milk in school meals as well as
new requirements to limit added sugars.
Further, in addition to addressing these and
other nutrition requirements, this rule
finalizes a variety of changes to school meal
requirements from the 2020 proposed rule,
Simplifying Meal Service and Monitoring
Requirements in the National School Lunch
and School Breakfast Programs.2 Updates for
the Child and Adult Care Food Program
(CACFP) and Summer Food Service Program
(SFSP) are also included in certain
provisions of this rule. Finally, USDA is
issuing a final rule of the provisions of this
rulemaking that strengthen the Buy American
requirement.3
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II. Background
The National School Lunch Program
(NSLP) and School Breakfast Program (SBP)
were established in 1946 and 1966,
respectively. Both programs provide
nutritionally balanced and low or no-cost
meals to children in schools each day. In
2012, USDA issued a final rule that increased
1 U.S. Department of Agriculture and U.S.
Department of Health and Human Services. Dietary
Guidelines for Americans, 2020–2025. 9th Edition.
December 2020. Available at DietaryGuidelines.gov.
2 Simplifying Meal Service and Monitoring
Requirements in the National School Lunch and
School Breakfast Programs (85 FR 4094, January 23,
2020). Available at: https://www.federalregister.gov/
documents/2020/01/23/2020-00926/simplifyingmeal-service-and-monitoring-requirements-in-thenational-school-lunch-and-school.
3 Statutory language can be found in the Richard
B. Russell National School Lunch Act (NSLA)
section 12(n) on page 56: https://www.fns.usda.gov/
nsla.
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the availability of nutritious foods like fruits,
vegetables, and whole grains and established
limits for sodium in school meals, among
other key changes. Since then, school
nutrition professionals, industry partners,
and other stakeholders have made
tremendous strides in improving the
nutritional quality of school meals, and
recent research shows that school meals are
the healthiest meals children eat during the
day.4 Many components of the 2012 nutrition
requirements were successfully
implemented, such as vegetable subgroups at
lunch and calorie ranges for school meals.
However, some requirements faced
challenges, including Congressional
intervention and administrative policies that
delayed implementation or allowed less
stringent requirements for milk, whole
grains, and sodium. In addition, during the
COVID–19 public health emergency, schools
required meal pattern flexibilities to ensure
that children had continued access to
nutritious meals amid supply chain
challenges. Program operators continue to
face pandemic-related and supply chain
challenges. To that end, this rule considers
those challenges and uses a phased-in
approach to implementation to strengthen
the nutritional quality of school meals over
time and provide ongoing support to school
nutrition professionals. This rule builds on
USDA’s prior rulemakings, such as Child
Nutrition Programs: Revisions to Meal
Patterns Consistent With the 2020 Dietary
Guidelines for Americans proposed rule and
Child Nutrition Programs: Transitional
Standards for Milk, Whole Grains, and
Sodium (87 FR 6984), from February 7, 2022,
to further align school meal nutrition
requirements with the goals of the Dietary
Guidelines, 2020–2025.
III. Comments
USDA received 51 comments on the
Regulatory Impact Analysis (RIA) in response
to the 2023 proposed rule Child Nutrition
Programs: Revisions to Meal Patterns
Consistent with the 2020 Dietary Guidelines
for Americans. The majority (45 respondents)
commented on the costs, 2 respondents
commented on long-term benefits, and 3
respondents commented on gaps in the RIA
of the proposed rule.
There were 26 comments on the RIA for
the 2020 proposed rule Simplifying Meal
Service and Monitoring Requirements in the
National School Lunch and School Breakfast
Programs. This rule includes five provisions
from the 2020 proposed rule:
• Meats/Meat Alternates at Breakfast
• Dry Beans, Peas, and Lentils at Lunch
• Meal Modifications
• Clarification on Potable Water
Requirements
• Synthetic Trans Fats
The comments received on the regulatory
impacts of the 2020 proposed rule did not
4 Liu J, Micha R, Li Y, Mozaffarian D. Trends in
Food Sources and Diet Quality Among US Children
and Adults, 2003–2018. JAMA Netw Open.
2021;4(4):e215262. doi:10.1001/
jamanetworkopen.2021.5262. This study found that
foods consumed at schools provided the best mean
diet quality of major US food sources.
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32093
include any comments related to expected
impacts of the specific provisions included
in this rule.
Comments on the 2023 Proposed Rule Child
Nutrition Programs: Revisions to Meal
Patterns Consistent With the 2020 Dietary
Guidelines for Americans
• Respondents expressed concern that
implementation of the 2023 proposed rule
would cause school districts to take on more
debt or make budget cuts in other areas to
fund school meals that meet the updated
requirements. Respondents noted that though
scratch cooking may be the most efficient
way to reduce sodium levels in meals, it
could be costly and should be accounted for
in the cost-benefit-analysis. Other
respondents pointed out that schools could
face additional costs passed along from
manufacturers having to reformulate their
products and change their labels.
USDA Response
The decisions around the rule have taken
into consideration the comments received on
the 2023 proposed rule regarding costs to
school districts. This rule maintains the
current flavored milk requirements
(Alternative B), which is the less restrictive
and less costly option. This RIA also
estimates $7 million in average annual cost
savings associated with aligning afterschool
snacks with CACFP snack requirements and
$5 million in average annual cost savings
from simplifying requirements for schools
that choose to substitute vegetables for fruits
at breakfast. This rule provides additional
operational or administrative flexibilities for
geographic preference, meats/meat alternates
as breakfast, nuts and seeds, and beans, peas
and lentils at lunch.
The sodium limits finalized in this rule are
less restrictive and intended to be more
attainable as compared to the proposed
limits. Instead of three 10 percent reductions
in NSLP and two 10 percent reductions in
SBP over several years, this rule includes one
reduction in each program to meet Target 2
levels from the 2012 rule, effective school
year (SY) 2027–2028. USDA recognizes that
in order to meet the sodium limits included
in this rule, additional recipe and product
reformulation may need to occur over time.
To that end, to develop the sodium limits in
this rulemaking, USDA considered the Food
and Drug Administration’s (FDA) voluntary
sodium reduction goals, which aim to reduce
sodium across the U.S. food supply. USDA
expects that aligning school meal sodium
limits with FDA’s voluntary sodium
reduction goals may help support children’s
acceptance of school lunches and breakfasts
with less sodium, as the school meal
reductions will occur alongside sodium
reductions in the broader U.S. food supply.
While USDA recognizes that schools may
choose to introduce more scratch and quickscratch cooking to meet the sodium limits,
USDA lacks data to fully estimate those costs.
However, potential equipment costs
associated with increased scratch cooking are
estimated in the ‘‘Uncertainties/Limitations’’
section and table 29 of this RIA. The
‘‘Uncertainties/Limitations’’ section also
includes discussion of other uncertainties in
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this analysis and their potential impact on
the costs and benefits of this rule.
The weekly average sodium limits are
approximately a 15 percent reduction for
lunch and 10 percent reduction for breakfast
and will take effect in SY 2027–2028.
Schools can maintain current sodium limits
(Target 1A) prior to the SY 2027–2028
reduction. This will allow time and
flexibility for a variety of sodium reduction
practices that the RIA has estimated costs for,
including product reformulation, scratch
cooking, menu adjustments, reducing the
frequency of offering higher sodium foods,
and recipe alterations.
• Respondents mentioned areas of impact
that were not considered in the proposed
RIA. These respondents noted that CACFP
and costs specific to its sponsors and
providers were largely excluded from the
RIA. One respondent suggested applying the
methods used to estimate the reporting and
record keeping costs for the Buy American
provision to the other proposed provisions.
Another respondent recommended that
USDA conduct a marginal analysis on the
cost of single-percent changes to the Buy
American non-domestic ceiling and provide
more information on the benefits of this
provision on child nutrition.
USDA Response
The reporting and record keeping
administrative burden hours estimated in
this RIA are in accordance with the
information collection request for these
activities approved by the Office of
Management and Budget (OMB) under the
Paperwork Reduction Act. USDA anticipates
regulatory familiarization costs, including
state administrative costs, local level training
costs, and costs associated with adjusting
purchasing patterns and menus at the local
level. The administrative costs associated
with this familiarization period were also
expected for the 2012 final rule, which is
used as a reference for the administrative
costs for this rule; see Administrative Costs
section.
Anticipated costs to CACFP sponsors and
providers have been incorporated into the
RIA in response to public comment. Costs
include reporting and record keeping costs,
administrative costs, familiarization costs,
and local training costs, as well as costs
associated with changes in purchasing
patterns and menus. CACFP purchasing
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patterns and menu impacts are most likely to
occur due to the added sugars provision,
specifically the added sugars limit of 12
grams per 6 oz of yogurt. This replaces the
existing limit of 23 grams of total sugars per
6 oz of yogurt for CACFP menus. The cost
impact for CACFP is estimated to be about $2
million (table 6). Other provisions that apply
to CACFP in this rule are not estimated to
have a cost impact because they are technical
corrections, clarifications, or add flexibility
to menu planning.
The costs associated with the Buy
American provision are based on increases in
reporting and record keeping burden due to
the final rule. Instead of a 5 percent ceiling
as proposed, the final rule institutes a phased
approach over seven school years to reach
the 5 percent ceiling on the non-domestic
commercial foods a school food authority
may purchase per school year. The phased
implementation will begin in SY 2025–2026
with a 10 percent non-domestic food cost
cap, with an 8 percent cap beginning in SY
2028–2029, and finally a 5 percent cap in SY
2031–2032. We estimate a $3 million annual
total food cost increase once the phased in
non-domestic foods ceiling reaches 5 percent.
Based on the average use of exceptions by
school food authorities (8.5 percent), each
single-percent reduction in the cap equals
approximately $0.8 million in annual costs.
These estimates are further detailed in the
‘‘Buy American’’ section (table 18). In
response to public comments that suggested
a 5 percent cap is too restrictive under
current procurement conditions, USDA
intends to help schools, State agencies, and
other stakeholders adjust to the new
requirement and achieve compliance with
the Buy American provision through a
phased in approach. The mission of Child
Nutrition Programs is to serve children
nutritious meals and support American
agriculture.
IV. Summary of Impacts
The estimated impacts of this rule
primarily reflect changes in the foods
purchased for use in school meals,
administrative familiarization, and labor
costs incurred by schools for meal
production. While this rule takes effect SY
2024–2025, the required changes will be
gradually phased in over time. Program
operators will not be required to make any
changes to their menus as a result of this rule
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until SY 2025–2026 at the earliest. USDA
estimates this rule will cost 5 schools
between $0.02 and $0.04 per meal,6 or an
average of $206 million 7 annually including
both the SBP and NSLP starting in SY 2024–
2025, accounting for the fact that changes
will be implemented gradually and adjusting
for annual inflation.8 Annual costs range
from $53 million to $283 million over eight
school years, adjusting for yearly inflation
(table 20). While some changes—such as
aligning the NSLP snack meal pattern with
that of CACFP or simplifying requirements
for schools that choose to substitute
vegetables for fruits at breakfast—are
estimated to reduce school food costs or have
no cost impact, other changes, such as added
sugars and sodium limits, are estimated to
increase food costs. There are no estimated
changes in Federal costs due to the changes
in this final rule, as the rule does not impact
the Federal reimbursement rate for school
meals and is not expected to significantly
impact baseline participation.
The changes in this rule are achievable and
realistic for schools and address the need for
strong nutrition requirements in school
meals. This analysis provides nine-year cost
streams to project potential impacts over
each impacted fiscal year (FY), though FY
2024 and FY 2032 are shown as half year
costs to account for the fact that
implementation of this rule spans eight total
school years (table 1). These same data are
presented in table A in the ‘‘Appendix’’
section by school year.
5 Except where noted in the participation
impacts, the terms ‘‘costs’’ and ‘‘savings’’ are used
in this analysis to describe the school level shifts
in food purchases and labor associated with school
meal production.
6 This is about 0.5% of the average cost to SFAs
per breakfast and lunch, in 2024 dollars. Factoring
4% annual inflation, breakfast costs $4.03 and
lunch costs $5.64 for SFAs to produce. Based on
School Nutrition Meal Cost Study (SNMCS)
Report—Volume 3, the average SFA had a reported
cost of $3.81 per NSLP lunch and $2.72 per SBP
breakfast in SY 2014–2015 (https://fnsprod.azureedge.us/sites/default/files/resource-files/
SNMCS-Volume3.pdf).
7 This annual average is based on this rulemaking
finalizing Milk Alternative B in the proposed rule.
8 Using 2023 dollars and not adjusting for annual
inflation results in $1.256 billion dollars over eight
school years (over nine fiscal years) or $52 to $227
million annually ($0.03 per meal), see appendix.
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TABLE 1: STREAM OF QUANTIFIABLE COSTS TO SCHOOLS DURING THE 9 YEARS OF IMPLEMENTATION, IN 2023 DOLLARS9•10
NOMINAL COST STREAM 15
ADMINISTRATIVE COSTS
ADDED SUGARS
MILK
SODIUM
AFTERSCHOOL SNACKS
SUBSTITUTE VEGETABLES
FOR FRUITS AT BREAKFAST
BUY AMERICAN
$21
$0
$0
$0
$0
$41
$52
$0
$0
-$4
$21
$103
$0
$0
-$8
$21
$103
$0
$45
-$8
$21
$103
$0
$91
-$8
$0
$103
$0
$91
-$8
$0
$103
$0
$91
-$8
$0
$103
$0
$91
-$8
$0
$52
$0
$45
-$4
$124
$722
$0
$454
-$59
-$2
-$4
-$4
-$4
-$4
-$4
-$4
-$4
-$2
-$31
$7
$10
$4
$4
$4
$4
$4
$5
$3
$45
TOTAL
$26
$94
$116
$161
$207
$186
$186
$186
$94
$1,256
0.2%
0.4%
0.4%
0.6%
0.7%
0.6%
1.1%
1.1%
0.5%
0.6%
$26
$26
$92
$88
$160
$132
$155
$124
$156
$124
$78
$62
$874
$761
% COST OF BASELINE 16
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$109
$101
$147
$131
$184
$158
As required by OMB Circular A–4, in table
2 below, the Department has prepared an
accounting statement showing the
annualized estimates of benefits, costs, and
transfers associated with the provisions of
this rule. The next section provides an
impact analysis for each change.
9 No adjustment for inflation was done for this
table aside for inflation from the time-period of data
collection up to 2023.
10 For data in 2023 dollars presented by school
years (July–June) instead of fiscal years (October–
September), see table A in the ‘Appendix’ section.
Totals are the same as table 1 and the breakdown
of costs is shown across the eight school years.
11 First year of provision implementation presents
half a year of costs from SY 2024–2025 (first half
of the school year).
12 Including costs from the second half of SY
2024–2025 and the first half of SY 2025–2026; this
style is also true of FY 2026 through 2031.
13 Presenting half a year of costs from SY 2030–
2031 (second half of the school year).
14 This is eight full fiscal years, including 7 full
fiscal years and two half years.
15 The nominal cost stream values are based upon
2023 participation levels and assumes participation
holds steady through FY 2032.
16 The percentage of baseline is calculated as total
costs of the proposed changes divided by the total
expected costs of the NSLP, SBP, and CACFP
programs in each fiscal year. Expected costs for
NSLP, SBP and CACFP are inflated from FY 2019
based on actual and forecasted food price inflation.
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DISCOUNTED COST STREAM
3 PERCENT
7 PERCENT
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Federal Register / Vol. 89, No. 81 / Thursday, April 25, 2024 / Rules and Regulations
TABLE 2: ACCOUNTING STATEMENT
Qualitative: Establishes achievable requirements that are expected to improve the nutritional content of meals served
through USDA child nutrition programs and therefore diet quality and health of children who consume those meals.
Additional provisions will also increase meal planning flexibility and improve program administration. Strengthens the Buy
American provision to ensure that school meals use foods produced in the US to the extent feasible.
Annualized
FY
Monetized
n.a.
n.a.
n.a.
n.a.
2024($millions/year)
2032
Quantitative:_Costs result from changes in food purchase patterns to meet the new requirements, labor associated with
changes in meal preparation, and administrative familiarization costs.
Annualized Monetized
($millions/year)
$140
Total
2023
7 percent
FY 2024-2032
Qualitative and Quantitative: There are no estimated changes in Federal reimbursement levels associated with this rule.
It is assumed participation will not measurably change from the baseline approximated by the status quo.
n.a.
V. Section by Section Analysis
This rule finalizes the following provisions
from the 2023 proposed rule:
• Added Sugars
• Milk
• Whole Grains
• Sodium
• Substituting Vegetables for Grains in Tribal
Communities
• Traditional Indigenous Foods
• Afterschool Snacks
• Substituting Vegetables for Fruits at
Breakfast
• Nuts and Seeds
• Competitive Foods: Bean Dip Exemption
• Professional Standards: Hiring Exemption
for Medium and Large Local Educational
• Agencies
• Buy American
• Geographic Preference
• Miscellaneous Changes
This rule also finalizes the following
provisions from the 2020 proposed rule:
• Meats/Meat Alternates at Breakfast
• Beans, Peas, and Lentils at Lunch
• Meal Modifications
• Clarification on Potable Water
Requirements
• Synthetic Trans Fats
USDA worked closely with program
stakeholders to gather input for the proposed
rule. The public was also invited to submit
comments on the transitional standards rule,
the 2023 proposed rule, the 2020 proposed
rule, and their accompanying Regulatory
Impact Analyses. Analyses below detail the
financial impacts of each provision of this
rule.
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n.a.
n.a.
A. Key Assumptions
Impacts in this analysis are based on data
collected during SY 2014–2015 for the
School Nutrition and Meal Cost Study
(SNMCS).17 Distribution of the types and
quantities of foods school districts purchase
may have changed since that time due to
pandemic supply chain challenges, meal
pattern flexibilities, implementation of the
transitional standards, changing consumer
preferences, and industry changes. Using a
10-year average of the Consumer Price Index
(CPI) for all food (including food consumed
away from home and at home) from 2015 to
the 2024 and the predicted 2023 and 2024
years, cost data were inflated four percent
annually for the analyses detailed below.18
The analyses in this rule assume that the
significant progress schools made toward
serving healthier meals after 2012 rule was
implemented will continue.
These analyses assume that school meal
participation (average daily participation and
meal counts) will normalize to be consistent
with the service levels in FY 2023, as that is
the most recent full year of typical program
operations. USDA acknowledges that changes
in the food served have the potential to
impact participation. This impact could be
either positive or negative, depending on
how specific menu or product changes are
implemented. Additional students may
participate due to the availability of Healthy
School Meals for All in several States in
17 https://www.fns.usda.gov/school-nutrition-andmeal-cost-study.
18 https://www.ers.usda.gov/data-products/foodprice-outlook/.
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n.a.
FY 2024-2032
recent years, where all students receive
breakfast and lunch at no cost to their
families. Discussion of potential participation
impacts are included in this Regulatory
Impact Analysis under the ‘‘Uncertainties/
Limitations’’ section as a sensitivity analysis.
The analyses in this Regulatory Impact
Analysis assume participation returns to
more typical, pre-pandemic levels and
projects participation will hold steady each
school year during the time period between
SY 2024–2025 and SY 2029–2030.
For discussion of health benefits of the
rule, expected impacts of specific provisions
on diet quality are estimated based on the
SNMCS and prior data from School Nutrition
Dietary Assessment Study (SNDA) IV.19
Between SY 2009–2010 and SY 2014–2015,
‘‘Healthy Eating Index–2010’’ (HEI–2010)
scores 20 of diet quality for NSLP and SBP
meals increased significantly. The Healthy
Eating Index is a tool to ‘‘measure of diet
quality that can be used to assess how well
a set of foods aligns with key
recommendations of the Dietary
Guidelines.’’ 21 At the time of data collection
in the SNMCS, the HEI–2010 score was used
19 https://www.fns.usda.gov/school-nutritiondietary-assessment-study-iv.
20 The Healthy Eating Index is a measure of diet
quality used to assess how well a set of foods aligns
with key recommendations of the Dietary
Guidelines for Americans that is periodically
updated with each edition of the Guidelines. HEI–
2010 and HEI–2015 scores are cited/calculated in
this impact analysis. At this time, no HEI–2020
score version has been released.
21 https://www.fns.usda.gov/healthy-eating-indexhei.
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Federal Register / Vol. 89, No. 81 / Thursday, April 25, 2024 / Rules and Regulations
for evaluation so that there could be a direct
comparison in diet quality between SY 2009–
2010 and SY 2014–2015. Over this period,
the overall mean HEI–2010 score for NSLP
lunches served increased from 57.9 to 81.5
out of a possible 100 points, and the mean
HEI–2010 score for SBP breakfasts increased
from 49.6 to 71.3 out of a possible 100 points.
USDA assumes these improvements were
due to the 2012 rule. This impact analysis
assumes that the dietary content of served
school meals continued to improve until
2019 and potentially even during the
pandemic for some schools because of the
2012 rule. However, USDA acknowledges
that following implementation of the 2012
rule, there have been changes to the school
meal pattern requirements because of USDA
rulemakings related to the milk, whole
grains, and sodium requirements, as well as
COVID meal pattern waivers, which might
have resulted in changes in the dietary
content of meals served.
With regards to added sugars, USDA
assumes that schools will use a variety of
menu changes to reduce added sugars to 10
percent or less of the weekly calorie content
at school lunch and breakfast. Because added
sugars have not been part of school meal
regulations in the past, there may be a
learning curve for school food authorities to
adjust as the product specific and weekly
average limits are gradually implemented.
Analyses of milk product data were
conducted with the assumption that some
products that meet the finalized flavored
milk added sugars limit of 10 grams per 8
fluid ounces are available. At the time data
were collected for SNMCS in SY 2014–2015,
no products met a 10-gram added sugars
limit; the mean added sugars content in
flavored milk was 12.2 g. However, data
collected by USDA in 2022 from a limited
number of K–12 school and food service
catalogs suggest that there has been a shift in
the added sugars content of milk products
available to schools in the last 7 years.22
More information can be found in the
‘‘Added Sugars’’ subsection of the ‘‘Impacts’’
section below. Additionally, in April 2023,
milk processors representing more than 90
percent of the school milk volume in the
United States committed to provide school
flavored milk options with no more than 10
grams of added sugar per 8 fluid ounce
serving beginning in SY 25–26.23
Because flavored milk is the main source
of added sugars in school meals, there is
some overlap in the impact analyses of added
sugars and milk changes in this rule. In this
rule, USDA adopts the milk provision
described as Alternative B in the proposed
rule, which maintains the current
requirement allowing all K–12 schools to
offer flavored and unflavored milks. Because
this rule maintains the current flavored milk
requirements, child nutrition program
operators will not need to make changes to
their menus to comply with this provision,
beyond those changes described in Section 2:
Added Sugars.
For the analysis of the sodium provision of
this rule, several assumptions were made.
The sodium content of school meals has been
trending downwards since implementation of
the 2012 rule. From SY 2009–2010 to SY
2014–2015 HEI–2010 sodium component
scores increase by almost 270 percent (from
10 to 27 percent of the maximum score). A
sodium component score of 10 indicates a
meal with sodium density content that is less
than or equal to 1100 mg of sodium per 1000
calories. A higher score indicates lower meal
sodium content. USDA assumes that the
sodium content of school meals continued to
decrease until the pandemic waivers allowed
flexibility to the meal requirements,
including sodium, beginning in 2020 due to
the COVID–19 pandemic disruptions to
school meal operations. Additionally, USDA
assumes that sodium reductions in school
meals will take place in a variety of ways and
that there are a multitude of strategies
schools can use to reduce the sodium content
of meals served. As a result, this impact
analysis analyzed a variety of meal pattern
food and portion combinations to account for
32097
the various ways that sodium levels could be
reduced.
Assumptions were also made in order to
measure the impacts of sections of the rule
that pertain to substituting vegetables for
grains in Tribal communities, traditional
Indigenous foods, afterschool snacks,
substituting vegetables for fruits at breakfast,
nuts and seeds, and the Buy American
provision. As our baseline for current school
meal program operations, it was assumed
that the proportion of the relevant food items
or food groups offered would be the same as,
or similar to, foods offered in SY 2014–2015,
which is the most recent school year data
available. This assumption provided a
baseline to simulate the impact of the
updates to foods served at school that will
occur as a result of this rule. For instance,
since we do not have the data to know what
combination of food and drink items schools
currently serve to meet snack program
requirements, USDA assumed the proportion
of offered food components in afterschool
snacks would be comparable to the
proportion of food components offered in
school meals in the current school year (SY
2023–2024). Similarly, the baseline assumes
that the proportion of foods purchased under
an exemption in the Buy American provision
would be comparable to purchasing patterns
from prior years.
For all analyses, the baseline for meals
served was the number of breakfasts,
lunches, and afterschool snacks served in
fiscal year 2023 (table 3). There were
approximately 4.1 billion lunches served in
the NSLP, 2.1 billion breakfasts served in the
SBP, and about 148 million snacks served
through NSLP afterschool snacks. As noted,
while this rulemaking takes effect in SY
2024–2025, USDA is gradually phasing in
required changes over time. Program
operators will not be required to make any
changes to their menus as a result of this
rulemaking until school year 2025–2026, at
the earliest.
TABLE 3. TOTAL MEALS SERVED IN 2023-VALUES USED FOR IMPACT CALCULATIONS
B. Impacts
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Baseline
The goal of this rule is to align school meal
nutrition requirements more closely with
recommendations in the Dietary Guidelines
for Americans, 2020–2025 and strengthen the
existing Buy American requirement. It is
assumed that the costs detailed in the
22 This was not an exhaustive data collection of
milk products across the marketplace, simply a factfinding search. See ‘Added Sugars’ subsection of
the ‘Impacts’ section below.
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Regulatory Impact Analysis for the
transitional standards rule will carry forward
from SY 2022–2023 through SY 2023–2024,
accounting for inflation. For this RIA, SY
2022–2023—the year in which the
transitional standards rule was implemented
in the school meal programs—is used as the
baseline for measuring changes schools
would need to make in order to meet the new
requirements included in this rule. Since
USDA expects the rule to be gradually
implemented beginning in SY 2024–2025,
this is the starting point for estimating the
annual costs of the new requirements.
Based on the total costs of the NSLP, SBP,
and CACFP programs from FY 2023, the most
recent full year of typical program
operations, costs have been forecasted to the
23 International Dairy Foods Association. IDFA
Announces ‘Healthy School Milk Commitment’ to
Provide Nutritious Milk with Less Added Sugar for
Students in Public Schools, Surpassing USDA
Standards. April 5, 2023. Available at: https://
www.idfa.org/news/idfa-announces-healthy-schoolmilk-commitment-to-provide-nutritious-milk-withless-added-sugar-for-students-in-public-schoolssurpassing-usda-standards.
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time-period between FY 2024 and FY 2032.
Absent this rule, we expect the overall
baseline program cost to be approximately
$208 billion over the eight fiscal years, seven
full fiscal years and two half fiscal years. The
estimated cost to implement this rule of $1.2
billion (table 1) represents a 0.6 percent 24
increase over the baseline cost of the three
largest child nutrition programs. Throughout
the ‘Impacts’ section, annual cost estimates
are presented for SY 2024–2025, meaning
that they are based on data that has been
inflated to SY 2024–2025 from the time of
data collection.
Administrative Costs
In order to implement this rule between SY
2024–2025 and SY 2031–2032, it is expected
that there will be some regulatory
familiarization costs, including state
administrative costs, local level training
costs, and costs associated with adjusting
purchasing patterns and menus at the local
level. While USDA has not collected data on
this element of rule implementation in the
past, comparable measures were used in the
2012 final rule. For that rule, Congress
provided $50 million per year for state
administrative costs (for two years, FY 2013
and 2014), and raised Federal
reimbursements for schools by 6 cents for all
lunches in schools that serve both breakfasts
and lunches that meet meal pattern
regulations and nutrition requirements.25
Since this rule includes more gradual and
smaller changes than the 2012 rule, USDA
expects state administrative costs to amount
to $25 million annually during the three
school years of gradual rule implementation,
SY 2024–2025, SY 2025–2026, and SY 2027–
2028,26 for a total of $75 million. Congress
has not provided additional funding for this
rule change; school food authorities will
need to account for them within their
operations. The same is true of the local costs
detailed in the next paragraph. State agencies
may use State Administrative Expense funds
(SAE) available in FY 2024 and FY 2025
towards administrative familiarization costs.
Fiscal year 2024 SAE funds were
substantially higher than in FY 2023 due to
pandemic waivers allowing schools to serve
meals at no cost to students reimbursed at
SFSP rates.
For familiarization costs at the local level,
USDA based the estimates on the additional
reimbursement rate (from the 2012 final rule)
of $0.06 per school lunch and about half of
other non-production labor costs. The
proportion of cost breakdown used in the
transitional standards rule was 45 percent
labor, 45 percent food, and 10 percent other.
Labor costs include both production (mealprep) and non-production labor costs; the
latter represent 19.8 percent of total labor and
would include familiarization costs as well
as other costs like nutrition education.27 We
assume non-production costs are evenly split
between these 2 activities, so overall,
familiarization would represent about 10
percent of labor costs. Therefore, USDA
assumes that 45 percent of the $0.06 addition
reimbursement represents labor costs, and 10
percent of this amount, or $0.003 ($0.004
after adjusting for inflation up to 2024 per
lunch), was the expected cost associated with
becoming familiar with the rule and making
necessary adjustments. This would then cost
$17 million annually at the local level during
the three school years of rule implementation
during which new changes will be
implemented, $51 million overall. In total
with state and local costs, this would be $130
million dollars over the course of the rule
that would be incurred by school food
authorities during rule implementation, or
$42 million annually (table 4).
TABLE 4: ESTIMATED ADMINISTRATIVE COSTS (MILLIONS), ADJUSTED FOR ESTIMATED INFLATION TO SY 20242025
In this rule, USDA finalizes the proposed
added sugars product-based and weekly
limits to school lunch and breakfasts. The
product-based limits will take effect in SY
2025–2026, allowing schools to make gradual
changes to their menus. The weekly dietary
limits will take effect two school years after
the product-based limits are implemented.
With added sugars now included on the food
and beverage product Nutrition Facts label
and the recommendation in the Dietary
Guidelines for Americans, 2020–2025 to limit
intake of added sugars to less than 10 percent
of calories per day, added sugars limits in
school meals will help students to achieve a
healthy dietary pattern without restricting
naturally occurring sugars. Effective SY
2025–2026, for school lunch and breakfast,
this rule establishes the following productbased added sugars limits in school meals:
• For school lunch and school breakfast,
breakfast cereals are limited to no more than
6 grams of added sugars per dry ounce. This
limit will also apply to CACFP starting
October 1, 2025.
• For school lunch and school breakfast,
yogurt is limited to no more than 12 grams
of added sugars per 6 ounces. This limit will
also apply to CACFP starting October 1, 2025.
• For school lunch and for school
breakfast, flavored milk is limited to no more
than 10 grams of added sugars per 8 fluid
ounces. This limit does not extend to CACFP.
The weekly dietary limit, which will take
effect in SY 2027–2028, limits added sugars
to less than 10 percent of calories per week
in the school lunch and breakfast programs.
This weekly limit will be in addition to the
product-based limits described above and
aligns with the Dietary Guidelines
recommendation to limit added sugars to less
than 10 percent of calories. The weekly limit
does not extend to CACFP.
While the NSLP and SBP have not had
total sugar or added sugars limits in the past,
product-based total sugar limits have been in
place in CACFP since 2017. The current
CACFP product-based limits apply to
breakfast cereals (≤6 g total sugar/1 dry oz)
and yogurt (≤23 g total sugar/6 oz). This final
rule applies the product-based added sugars
limits for breakfast cereals and yogurts to the
CACFP, effective October 1, 2025; the added
sugars limits will replace the current total
sugar limits for breakfast cereals and yogurts.
This aligns the yogurt and breakfast cereal
added sugars limits between the two
programs, simplifying program
administration for schools that operate both
programs and simplifying any necessary
product reformulation.
The product-based limits for breakfast
cereals and yogurts were supported by food
label data collected by USDA in May 2022.29
These data were used to estimate the
proportion of recently available products that
could meet the added sugars limits and
demonstrated a shift in the proportion of
products currently meeting existing CACFP
total sugar limits. SNMCS data shows that in
SY 2014–2015, only nine percent of served
yogurt products met the existing CACFP total
sugar yogurt limit and 35 percent of hot and
cold cereal products met the CACFP total
sugar cereal limit. Based on food label data,
about 90 percent of yogurt products and 44
percent of hot and cold cereal products
24 These costs are school food authority costs as
a percentage of reimbursement baselines at this
time (not Federal costs).
25 https://www.cbo.gov/sites/default/files/111thcongress-2009-2010/costestimate/
healthyhungerfreekidsact0.pdf.
26 Refer to Preamble section 21B: Table of
Changes by Program.
27 SNMCS Study Report Volume 3: Table 2.6.
28 Three school years when provisions of the rule
take effect: SY 2024–2025, SY 2025–2026, and SY
2027–2028.
29 USDA Food and Nutrition Service, Office of
Policy Support data collection of nutrition label
information from major cereal and yogurt
manufacturer K–12 and food service catalogs.
Added Sugars
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Federal Register / Vol. 89, No. 81 / Thursday, April 25, 2024 / Rules and Regulations
available during SY 2021–2022 met the
existing CACFP total sugar limits.30 This
indicates that in recent years manufacturers
were able to make considerable changes in
the sugar content of both yogurt and cereal
products. The CACFP does not have any
flavored milk total sugar limits. This analysis
compares the cost of products that met the
added sugars limits finalized in this rule to
those that did not during SNMCS data
collection. Since there is now wider market
availability of products with a lower sugar
content than there were during SY 2014–
2015, it is possible that the actual cost of
these changes may be lower than estimated
due to a higher number of lower sugar
product options.
Breakfast Cereals
The estimated cost of sweetened and
unsweetened cold cereals was the same per
dry ounce regardless of added sugars content.
All hot cereal products met the added sugars
limit in SY 2014–2015. While hot cereal is
about half the price of cold cereal per dry
ounce, it is not widely served; only five
percent of menus included hot cereal and an
even lower proportion of students consumed
hot cereal. The cost of hot cereal per dry
ounce also does not account for potentially
costly toppings, such as nuts, seeds, or dried
fruit. Toppings for hot cereal such as brown
sugar or chocolate chips would also contain
additional added sugars that are not
accounted for in SNMCS data. Because it is
unknown whether the proportion of schools
serving hot cereal would increase under the
final rule and because there is no cost
difference among cold cereals based on
added sugars content, we expect that this
final rule will result in no change in annual
cost for breakfast cereals despite the
introduction of the added sugars limit. Of
those hot and cold cereal products available
during data collection in 2022,31 50 percent
of products available met the added sugars
limit of ≤ 6 g added sugars per ounce.
The added sugars limit for breakfast cereals
extends to NSLP, SBP, and CACFP. The new
6 grams of added sugars limit for breakfast
cereals is similar to the current CACFP limit
of 6 grams of total sugars, but focuses on
added sugars rather than total sugars,
consistent with Dietary Guidelines
recommendations. Therefore, USDA
estimates it will not have a cost impact for
CACFP as operators will continue to be able
to serve breakfast cereals currently allowed
in the program. Alignment of this limit across
child nutrition programs may simplify
program administration for State agencies
and local program operators.
Yogurt
About 1.1 billion portions of yogurt are
served annually at school breakfast and
lunch combined. During SY 2014–2015,
almost all yogurt products exceeded 12 grams
of added sugars per 6 ounces. However, of
the yogurt products available during SY
2021–2022, 57 percent of yogurt nutrition
labels, or approximately 627 million
portions, met the added sugars limit finalized
in this rule.32 The recent nutrition label data
32099
collection indicates that manufacturers have
already made significant changes to yogurt
products since the implementation of the
CACFP total sugars limit in 2017, but also
indicates that there is room for product
reformulation in at least 43 percent of
currently available products. For this
analysis, to more accurately reflect currently
available products, USDA used the SY 2021–
2022 nutrition label data that indicated 57
percent of yogurt products meet the added
sugars limit finalized in this rule.
When school meal cost data were last
collected in SY 2014–2015, low-fat and fatfree yogurt products that met the added
sugars limit cost $0.05 more than those
products that did not meet the limit. On
average, yogurt products with more than 12
grams of added sugars per 6-ounce container
cost $0.42 and those with 12 grams or less
of added sugars cost $0.47. This estimate
assumes the cost of yogurt products is the
same for CACFP providers, and that, based
on program year 2016–2017, CACFP
providers served yogurt at snacks and
suppers.33 If the added sugars limit is met in
every meal and snack that includes yogurt,
43 percent of yogurt portions served would
need to shift to products with fewer added
sugars. This would cost an estimated $32
million total for NSLP, SBP, and CACFP,
assuming the products that meet the added
sugar limit cost $0.05 more per meal (about
$0.07 after adjusting for inflation) (table 6).
TABLE 6. ANNUAL COST OF IMPLEMENTING YOGURT ADDED SUGARS LIMIT (MILLIONS), ADJUSTED FOR ESTIMATED
INFLATION TO SY 2024-2025
TOTAL*
NA
995
567
$692
428
660
32
Flavored Milk
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This rule establishes a flavored milk added
sugars limit of 10 grams of added sugars per
8 fluid ounces or, for flavored milk sold as
a competitive food for middle and high
schools, 15 grams of added sugars per 12
fluid ounces. As detailed in Section 3A:
Flavored Milk of the rule preamble, schools
30 USDA Food and Nutrition Service, Office of
Policy Support internal analysis using collected
nutrition label data during the development of the
rule. Data were collected on 110 total yogurt
products and 191 total cereal products.
31 USDA Food and Nutrition Service, Office of
Policy Support data collection of nutrition label
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may continue to offer fat-free and low-fat
milk, flavored and unflavored, to all K–12
students. Effective SY 2025–2026, flavored
milk must meet the product-based added
sugars limit. In SY 2014–2015, there were no
flavored milk products that met the new
added sugars limit (≤10 g added sugars/8
fluid ounces); therefore, USDA could not
compare the cost of flavored milk products
that did and did not meet the added sugars
limit. Instead, cost analyses are based on the
difference in cost of unflavored and flavored
milk, using unflavored milk as a proxy for
milk that meets the added sugars limit.
The SY 2014–2015 data indicate that the
cost of milk varied by fat content, but not
information from major cereal and yogurt
manufacturer K–12 and food service catalogs. Data
were collected on 191 total cereal products.
32 USDA Food and Nutrition Service, Office of
Policy Support data collection of nutrition label
information from major cereal and yogurt
manufacturer K–12 and food service catalogs. Data
were collected on 110 total yogurt products.
33 https://www.fns.usda.gov/cn/study-nutritionactivity-childcare-settings-usdas-cacfp.
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Federal Register / Vol. 89, No. 81 / Thursday, April 25, 2024 / Rules and Regulations
consistently. On average, low-fat, flavored
milk cost $0.01 more than low-fat, unflavored
milk per carton (8 fluid ounces). However,
fat-free, flavored milk cost $0.01 less than fat-
free, unflavored milk per carton. Low-fat,
flavored milk was the least offered milk
variety based on the SNMCS report (table 7).
Low-fat, unflavored milk and fat-free,
flavored milk were offered on a majority of
menus at both breakfast and lunch, whereas
fat-free, unflavored milk was offered on about
half of menus for both breakfast and lunch.
TABLE 7. PERCENTAGE OF DAILY SBP AND NSLP MENUS THAT OFFERED MILK PRODUCTS IN SY
2014-2015 34
To estimate the cost of serving milk that
meets the added sugars limit, the cost of
serving 100 percent unflavored milk (low-fat
and fat-free), was compared to the estimated
cost of all milk served during SY 2014–2015
(table 8). In lieu of data on milk served in
school meals that meets the added sugars
limit, the cost of unflavored milk is used as
a proxy. The cost increase from serving milk
with ≤10 grams added sugars per 8 fluid
ounces is approximately $76 million
annually, assuming the same proportion of
servings as SY 2014–2015 menus. In addition
to fat-free, unflavored milk costing $0.01
more than fat-free, flavored milk, this cost
increase reflects that there was a much higher
proportion of fat-free, flavored milk served
compared to low-fat flavored milk during
that school year.
TABLE 8. ANNUAL COST OF IMPLEMENTING FLAVORED MILK ADDED SUGARS LIMIT (MILLIONS), ADJUSTED FOR
ESTIMATED INFLATION TO SY 2024-2025
FA
34 SNMCS
Report—Volume 2.
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transitional standards rule 35 from the
International Dairy Foods Association and
National Milk Producers Federation
indicated that the average added sugars
content of flavored milk has declined from
16.7 to 7.1 grams in an eight-ounce serving
of flavored school milk between SY 2006–
2007 and SY 2019–2020. Despite the fact that
no flavored milk products served in SY
2014–2015 met the added sugars limit, an
internally conducted search of recent K–12
and food service product catalogs containing
milk products indicated that there are some
flavored milks now available to schools that
meet the 10 grams of added sugar per eight
fluid ounces limit.36 At least four
manufacturers had at least one flavored milk
product with under 10 grams of added sugars
per eight fluid ounce serving, and three
manufacturers had products with 6 grams of
added sugars per eight fluid ounce serving.
A total of 10 flavored milk products from
35 https://www.regulations.gov/comment/FNS2020-0038-4702.
36 This was not an exhaustive data collection of
milk products across the marketplace, simply a factfinding search.
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It is possible that prices of milk types have
aligned since SY 2014–2015 and that the
annual cost changes from reducing added
sugars in flavored milks will be minimal.
These estimates use the most recent school
food authority-representative data available.
During SY 2014–2015, flavored milk
products had a mean added sugars content of
12.2 grams (minimum: 10.4 grams,
maximum: 17.8 grams). Public comment on
proposed rule that preceded the 2022
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Federal Register / Vol. 89, No. 81 / Thursday, April 25, 2024 / Rules and Regulations
four companies were below the 10 grams
limit. The catalogs used for data collection
generally showed that there were lower and
higher sugar versions of flavored milk
available. However, it is likely that additional
product reformulation will be necessary for
those manufacturers that have yet to reduce
added sugars content of their flavored milk
products. More recently, in April 2023, the
International Dairy Foods Association
announced a commitment to provide
flavored milk with no more than 10 grams of
added sugars per 8 fluid ounces, consistent
with the limit established by this rule. This
commitment was made by 37 school milk
processors representing more than 90 percent
of the school milk volume in the U.S.37
32101
Product Limit Total Impact
In total, across all four product categories,
we estimate the cost to meet the added sugars
limits would be around $107 million per
year. This total reflects the cost impacts of
cereal, yogurt, and flavored milk products
added sugars limits. These estimated annual
costs, adjusted for inflation, are shown in
table 9.
TABLE 9: ESTIMATED COST OF PRODUCT-SPECIFIC ADDED SUGAR LIMITS (MILLIONS), ADJUSTED
FOR ESTIMATED INFLATION TO SY 2024-2025
Weekly Limit
This rule also finalizes a weekly limit of
less than 10 percent of calories per week
from added sugars in the school lunch and
breakfast programs, effective SY 2027–2028.
Considerable menu changes will be required
to meet the weekly limit at breakfast. In SY
2014–2015 approximately 11 percent of
calories offered at lunch and 17 percent at
breakfast were from added sugars.38 Since
there are so many approaches to reduce
added sugars across menus, there is not an
accurate way to estimate the cost change of
reducing all breakfast menus to containing
less than 10 percent of calories per week
from added sugars. In school breakfasts
during SY 2014–2015, fat-free, flavored milk
contributed 30 percent of added sugars
content, with sweetened cold cereals
contributing 13 percent, grain-based desserts
contributing 12 percent, and condiments/
toppings contributing 12 percent.39 Schools
may find that replacing flavored with
unflavored milk is an effective way to begin
to approach the weekly limits. Flavored milk
in school meals has an average of 12 g of
added sugar (minimum 10.4 g and maximum
17.8 g). If all flavored milk products were
replaced with unflavored milk products, the
percentage of calories from added sugars
drops to six percent at lunch and to 13
percent at breakfast.40 School food
authorities could also use a more moderate
approach of reducing, but not eliminating,
flavored milk offerings at school breakfast;
for example, offering unflavored milk
varieties only certain days of the school
week. Although this approach is not required
in this final rule, it would be a simple and
effective way to initiate a decrease in the
added sugars content of weekly menus.
School food authorities may also choose to
reduce or eliminate grain-based desserts,
sweetened cold cereals, and/or some
condiments. This final rule allows schools to
more easily offer meats/meat alternates at
breakfast by removing the requirement for
schools to meet a minimum grains
requirement each day at breakfast. Under this
provision (see: Section 6: Meats/Meat
Alternates at Breakfast), schools may offer
grains, meats/meat alternates, or a
combination of both to meet the combined
grains and meats/meat alternates component.
Consequently, schools have more flexibility
to replace grains that are high in added
sugars with meats/meat alternates, such as
scrambled eggs, which could help schools to
meet the weekly added sugars limit at
breakfast upon implementation. In making
menu changes, school food authorities will
likely choose to balance making the best
economic decision for their operations with
the need to minimize impacts on student
37 International Dairy Foods Association. IDFA
Announces ‘Healthy School Milk Commitment’ to
Provide Nutritious Milk with Less Added Sugar for
Students in Public Schools, Surpassing USDA
Standards. April 5, 2023. Available at: https://
www.idfa.org/news/idfa-announces-healthy-schoolmilk-commitment-to-provide-nutritious-milk-withless-added-sugar-for-students-in-public-schoolssurpassing-usda-standards.
38 Added Sugars in School Meals and Competitive
Foods.
39 Fox MK, Gearan EC, Schwartz C. Added Sugars
in School Meals and the Diets of School-Age
Children. Nutrients. 2021;13(2):471. Published 2021
Jan 30. doi:10.3390/nu13020471.
40 Based on an internal USDA analysis using
SNMCS–II data.
41 World Health Organization Taxes on Sugary
Drinks: Why Do It? World Health Organization.
2017 Available online: https://apps.who.int/iris/
handle/10665/260253.
42 See 7 CFR 210.11(m)(3) https://www.ecfr.gov/
current/title-7/part-210#p-210.11(m)(3) and https://
www.fns.usda.gov/cn/nutrition-standards-all-foodssold-school-summary-chart.
43 Fox MK, Gearan EC, Schwartz C. Added Sugars
in School Meals and the Diets of School-Age
Children. Nutrients. 2021;13(2):471. Published 2021
Jan 30. doi:10.3390/nu13020471.
44 Warshaw H, Edelman SV. Practical Strategies to
Help Reduce Added Sugars Consumption to
Support Glycemic and Weight Management Goals.
Clin Diabetes. 2021;39(1):45–56. doi:10.2337/cd20–
0034.
45 Malik VS, Hu FB. Sugar-Sweetened Beverages
and Cardiometabolic Health: An Update of the
Evidence. Nutrients. 2019;11(8):1840. Published
2019 Aug 8. doi:10.3390/nu11081840.
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participation and acceptance of new foods.
The phased-in approach of this final rule,
first with the product specific limits and then
with a weekly average limit of added sugars,
will help to temper any potential
participation changes.
Health Benefits
A major source of added sugars, sugarsweetened beverages (SSBs), has been
studied widely as it relates to health
outcomes. The World Health Organization
defines SSBs as all beverages containing free
sugars, including carbonated or noncarbonated soft drinks, liquid and power
concentrates, flavored water, energy and
sports drinks, ready-to-drink tea, ready-todrink coffee, and flavored milk drinks.41
Flavored milk is the top source of added
sugar in school meals, and other SSBs may
be sold as competitive foods to high school
students under specific competitive food
requirements.42 43 Consumption of SSBs is
related to risk of type 2 diabetes (T2D),44
cardiovascular disease (CVD),45 46 and
chronic kidney disease.47 Tooth decay and
cavities are also associated with increased
SSB consumption.48 Other top sources of
added sugars in school meals include
sweetened cold cereal and grain-based
desserts. If a third of school children met the
Dietary Guidelines recommendation for
46 O’Connor L, Imamura F, Brage S, Griffin SJ,
Wareham NJ, Forouhi NG. Intakes and sources of
dietary sugars and their association with metabolic
and inflammatory markers. Clin Nutr.
2018;37(4):1313–1322. doi:10.1016/
j.clnu.2017.05.030.
47 Bomback AS, Derebail VK, Shoham DA, et al.
Sugar-sweetened soda consumption,
hyperuricemia, and kidney disease. Kidney Int.
2010;77(7):609–616. doi:10.1038/ki.2009.500.
48 Valenzuela MJ, Waterhouse B, Aggarwal VR,
Bloor K, Doran T. Effect of sugar-sweetened
beverages on oral health: a systematic review and
meta-analysis. Eur J Public Health. 2021;31(1):122–
129. doi:10.1093/eurpub/ckaa147.
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added sugars consumption into adulthood, it
could prevent an estimated 12,260 adult
deaths related to CVD and cancer and save
$6.01 billion in medical costs per year.49
Gradual reduction in added sugars content to
10 percent of calories per week at school
lunch and breakfast will align meals with the
goals of the Dietary Guidelines and will
promote improved lifestyle habits and health
outcomes during childhood that can track
into adulthood.50
Milk
This final rule codifies the proposal to
maintain the current regulation allowing all
schools the option to offer fat-free and lowfat milk, flavored and unflavored, to K–12
students, and to sell fat-free and low-fat milk,
flavored and unflavored, a` la carte. No
annual change in the cost of milk is expected
due to maintaining the transitional milk
standards.
Several additional provisions would apply
under this requirement. The added sugars
requirement for flavored milk, which limits
flavored milks to 10 grams of added sugars
per 8 fluid ounces, effective SY 2025–2026,
applies to milk served in reimbursable school
lunches and breakfasts, and to milks sold as
a competitive beverage.51 Consistent with
current requirements, this rule would require
that unflavored milk be offered at each
school meal service. This rule also continues
to allow fat-free and low-fat milk, flavored
and unflavored, to be offered to participants
ages 6 and older in the SMP and CACFP.
Health Benefits
In the transitional standards rule, the
decision to allow fat-free, flavored milk and
low-fat, flavored milk reflected concerns
about declining milk consumption and the
importance of the key nutrients provided by
milk for school-aged children.52 However,
USDA recognizes that flavored milk is the
highest source of added sugars in school
meals, which is why the product-specific
added sugars limit has been finalized. Under
this limit, flavored milk must contain no
more than 10 grams of added sugars per 8
fluid ounces of milk. Both flavored milk and
unflavored milk contain protein, calcium,
potassium, vitamin A, vitamin D, and many
more essential nutrients. About 90 percent of
the U.S. population does not meet dairy
recommendations. Most individuals would
benefit by increasing intake of dairy in fat49 Wang L, Cohen J, Maroney M, et al. Evaluation
of health and economic effects of United States
school meal standards consistent with the 2020–
2025 dietary guidelines for Americans. The
American Journal of Clinical Nutrition. 2023. DOI:
https://doi.org/10.1016/j.ajcnut.2023.05.031.
50 Lioret S, Campbell KJ, McNaughton SA, et al.
Lifestyle Patterns Begin in Early Childhood, Persist
and Are Socioeconomically Patterned, Confirming
the Importance of Early Life Interventions.
Nutrients. 2020;12(3):724. Published 2020 Mar 9.
doi:10.3390/nu12030724.
51 USDA is finalizing a higher added sugars limit
for flavored milk sold as a competitive food in
middle and high schools due to the larger serving
size. The serving size for milk offered as part of a
reimbursable meal is 8 fluid ounces. Milks sold to
middle and high school students as a competitive
food may be up to 12 fluid ounces.
52 https://www.gpo.gov/fdsys/pkg/FR-2017-11-30/
pdf/2017-25799.pdf.
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free or low-fat forms of milk. Calcium,
potassium, dietary fiber, and vitamin D are
considered dietary components of public
health concern for the general U.S.
population because low intakes are
associated with health concerns.53 Low-fat
dairy was also shown in some evidence to be
part of a healthy dietary pattern in children
that was associated with lower blood
pressure and improved blood lipid levels
later in life.54 These potential health benefits
combined with the fact that milk is a
nutrient-dense beverage support the
continued serving of both fat-free and low-fat
flavored and unflavored milk. With flavored
milk also meeting added sugar limits, all
milk options schools offer will better align
with the Dietary Guidelines for Americans
regardless of student flavor preferences.
Whole Grains
This rule maintains the current
requirement that at least 80 percent of the
weekly grains offered are whole grain-rich,
based on ounce equivalents of grains served
in the school lunch and breakfast programs.
The definition of whole grain-rich, which is
codified in this final rule, reads as follows:
Whole grain-rich is the term designated by
FNS to indicate that the grain content of a
product is between 50 and 100 percent whole
grain with any remaining grains being
enriched. This definition does not change the
meaning of whole grain-rich, which has
previously been communicated in USDA
guidance, but is simply a clarification for
school food authorities. The definition is
included in NSLP, SBP, and CACFP
regulations. There is no cost change expected
as a result of these provisions because the
requirement that at least 80 percent of weekly
grains offered are whole grain-rich is carried
forward from the 2022 transitional standards
rule.
Health Benefits
The 2022 transitional standards rule
required that at least 80 percent of grains
offered be whole grain-rich. This was an
increase from the 2018 rule which required
that at least 50 percent of grains offered be
whole grain-rich, in light of the challenges
schools were facing in meeting the 2012 rule
requirements. Despite these challenges,
schools have made considerable progress
offering whole grain-rich products. On
average, in SY 2014–2015, 70 percent of the
weekly menus offered at least 80 percent of
the grain items as whole grain-rich for both
breakfast and lunch.55 This rule continues to
53 U.S. Department of Agriculture and U.S.
Department of Health and Human Services. Dietary
Guidelines for Americans, 2020–2025. 9th Edition.
December 2020. Available at DietaryGuidelines.gov.
54 Bouchey C, Ard J, Bazzano L, Heymsfield S,
Mayer-Davis E, Sabate´ J, Snetselaar L, Van Horn L,
Schneeman B, English LK, Bates M, Callahan E,
Butera G, Terry N, Obbagy J. Dietary Patterns and
Risk of Cardiovascular Disease: A Systematic
Review. July 2020. U.S. Department of Agriculture,
Food and Nutrition Service, Center for Nutrition
Policy and Promotion, Nutrition Evidence
Systematic Review. Available at: https://doi.org/
10.52570/NESR.DGAC2020.SR0102.
55 Based on an internal USDA analysis using data
from: U.S. Department of Agriculture, Food and
Nutrition Service, School Nutrition and Meal Cost
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emphasize the importance of consuming a
dietary pattern with grains that are whole
grain-rich, but also carries forward
manageable, achievable goals.
Prepared NSLP lunches in SY 2014–2015
scored 95 percent of the maximum HEI–2010
whole grains component score, on average,
and prepared breakfasts in the SBP scored 92
percent of the maximum.56 NSLP
participants scored the maximum HEI–2010
whole grains component score for lunches
consumed on average in SY 2014–2015 and
nonparticipants scored only 63 percent of the
maximum score, a significant difference. SBP
participants scored 98 percent of the
maximum HEI–2010 whole grain component
score on breakfasts consumed, whereas
nonparticipants scored 68 percent of the
maximum score.57 A maximum whole grain
component score in the HEI–2010 is achieved
with at least 1.5 ounces equivalent of whole
grains per 1000 kilocalories of intake, a
measure of nutrient density. In SY 2014–
2015, school meal programs were matching
recommendations from the Dietary
Guidelines at a high level with regards to
whole grains.
Whole grains are considered to be a
nutrient dense food, and the Dietary
Guidelines recommend making half of your
grains whole grains. However, almost all (98
percent) of Americans fall below
recommendations for whole grains, while
most (74 percent) exceed limits for refined
grains, underscoring the importance of
school meal requirements that encourage
children’s consumption of whole grain-rich
foods. Throughout the lifespan, consumption
of whole grains has also been shown to
reduce the risk of type 2 diabetes.58
Additionally, if children consume whole
grains at the level recommended in the
Dietary Guidelines through to adulthood, it
could prevent an estimated 2,940 CVD- and
cancer-related deaths and save $6.01 billion
in medical costs per year.59 Whole grains are
shown in some evidence to be part of a
healthy dietary pattern in children that was
associated with lower blood pressure and
improved blood lipid levels later in life.60
Study Final Report Volume 2: Nutritional
Characteristics of School Meals, by Elizabeth
Gearan et al. Project Officer, John Endahl,
Alexandria, VA: April 2019. Available online at:
www.fns.usda.gov/research-and-analysis.
56 SNMCS Volume 2—Figures 5.2 and 5.5.
57 SNMCS Volume 4—Figures 9.2 and 12.2.
58 Chanson-Rolle
´ A., Meynier A., Aubin F., Lappi
J., Poutanen K., Vinoy S., Braesco V. Systematic
Review and Meta-Analysis of Human Studies to
Support a Quantitative Recommendation for Whole
Grain Intake in Relation to Type 2 Diabetes. PLoS
ONE. 2015;10:e0131377. doi: 10.1371/
journal.pone.0131377.
59 Wang L., Cohen J., Maroney M., et al.
Evaluation of health and economic effects of United
States school meal standards consistent with the
2020–2025 dietary guidelines for Americans. The
American Journal of Clinical Nutrition. 2023. DOI:
https://doi.org/10.1016/j.ajcnut.2023.05.031.
60 Bouchey C., Ard J., Bazzano L., Heymsfield S.,
Mayer-Davis E., Sabate´ J., Snetselaar L., Van Horn
L., Schneeman B., English L.K., Bates M., Callahan
E., Butera G., Terry N., Obbagy J., Dietary Patterns
and Risk of Cardiovascular Disease: A Systematic
Review. July 2020. U.S. Department of Agriculture,
Food and Nutrition Service, Center for Nutrition
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Factors that contribute to increased
consumption of whole grains in children
include providing a variety of whole grain
options, serving whole grains in school
programs, and improving appearance of
package and product marketing.61 The
documented health benefits of the
consumption of whole grain-rich products
and strategies to increase whole grain intake
in children both support a continued whole
grain requirement in school meals.
Sodium
This rule updates the approach to sodium
reduction in school meals. Lessons learned
from the 2012 rule indicate that smaller,
incremental reductions in sodium content
may be more achievable given the need for
industry to reformulate products and for
schools to modify both the products they
serve and their preparation methods. Based
on these lessons learned and on comments
received on the proposed rule, the current
sodium limits (implemented in the 2022
transitional standards rule) will be
maintained over the next three school years,
and a single reduction will be implemented
in SY 2027–2028. This final rule sets forth an
approximate 15 percent reduction for school
lunch and an approximate 10 percent
reduction for school breakfast from the
current sodium limits. The sodium limits in
this rulemaking are informed by the Dietary
Guidelines and FDA’s voluntary sodium
32103
reduction goals, which aim to reduce sodium
across the U.S. food supply.
To provide context, the previous three
sodium targets from the 2012 rule and the
targets from the 2022 transitional standards
rule are presented below (table 10). The
transitional standards rule required schools
to meet Sodium Target 1 for school lunch
and breakfast, effective SY 2022–2023. For
school lunch only, schools were required to
meet Sodium Target 1A beginning in SY
2023–2024. This final rule maintains the
current limits under Target 1A for lunch and
Target 1 for breakfast through the end of SY
2026–2027 and adds new limits that conform
to the Target 2 limits from the 2012 rule,
effective SY 2027–2028 (table 11).
TABLE 10: THREE 2012 SODIUM TARGETS AND TARGETS FROM THE TRANSITIONAL STANDARDS RULE
(MG) FOR CURRENT SCHOOL LUNCH AND SCHOOL BREAKFAST
menu-served sodium content from SY 2014–
2015, in which elementary, middle, and high
school breakfast menus had sodium content,
on average, of 510 mg, 570 mg, and 580 mg,
respectively. This indicates that the majority
of schools were already meeting Sodium
Target 1 from the 2012 rule for both breakfast
and lunch in SY 2014–2015, and almost
meeting Sodium Target 1A from the 2022
transitional standards rule for school lunch.
More specifically, 72 percent of weekly lunch
menus and about 66 percent of weekly
breakfast menus were meeting Sodium Target
1 in SY 2014–2015.62
Policy and Promotion, Nutrition Evidence
Systematic Review. Available at: https://doi.org/
10.52570/NESR.DGAC2020.SR0102.
61 Meynier A., Chanson-Rolle
´ A., Riou E., Main
Factors Influencing Whole Grain Consumption in
Children and Adults—A Narrative Review.
Nutrients. 2020;12(8):2217. Published 2020 Jul 25.
doi:10.3390/nu12082217.
62 SNMCS Report Volume 2.
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The school lunch baseline for this analysis
is the menu-served sodium content from SY
2014–2015, in which elementary, middle,
and high school lunch menus had sodium
content, on average, of 1135 mg, 1235 mg,
and 1330 mg, respectively. The school
breakfast baseline for this analysis is the
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Because this final rule maintains the
current sodium limits, no additional costs are
expected through the end of SY 2026–2027.
In order to simulate the potential increase in
costs due to the final rule sodium limits
effective SY 2027–2028, we determined
whether products served in schools met the
FDA short-term voluntary sodium targets.63
For products that did not meet the FDA
voluntary targets, we simulated the change in
sodium by capping the sodium amount at the
appropriate FDA category voluntary target.
This simulation was originally used to
estimate the cost of the proposed sodium
limits, which was a series of 10 percent
reductions over multiple school years. The
analysis described in the subsection below
‘‘Analyses Related to Gradual Sodium
Reduction’’ found that when foods served in
school meals met the FDA voluntary sodium
reduction targets the overall sodium content
of menus decreased by approximately 10
percent. We assume this is true for estimating
the cost impact of the final sodium limit. The
cost difference was estimated by comparing
the cost of a meal with foods that either
already meet, or are not subject to, the FDA
short-term voluntary targets to the cost of a
meal with foods that do not meet, and are
being subject to, the FDA short-term
voluntary targets and represents the cost
difference associated with a 10 percent
sodium reduction. The average cost of
multiple food group combinations in sample
menus was used for both breakfast and lunch
to simulate the cost of a variety of menus that
might be created and used by school food
authorities. This cost difference was used to
estimate the total cost for the 10 percent
sodium reduction applicable to breakfast in
this final rule. For the 15 percent sodium
reduction for lunch, the estimated cost
difference for a 10 percent reduction was
increased by 50 percent to reflect the
additional costs associated with the larger
sodium reduction.
When comparing higher sodium school
meals (those containing more foods being
targeted by FDA voluntary sodium guidance)
to lower sodium school meals, higher sodium
meals were found to be less expensive. Meals
from SY 2014–2015 with higher sodium
foods were $0.09 cheaper per SBP meal and
$0.05 cheaper per NSLP meal than those
meals that contained lower sodium products
when only considering food costs. Adjusted
for inflation, this was a $0.08 difference per
meal, on average, for breakfast and lunch. We
use those per meal food cost differences,
adjusted for inflation, to estimate the food
cost of the final rule sodium limits. We
include in the total cost impact an added 25
percent labor costs associated with increased
scratch cooking, totaling $2 million annually
for labor from rule implementation. We
assume scratch cooking will only increase
about 25 percent since products should
already be available that would allow schools
to meet the final rule sodium limits (table
12). The approximate cost of implementing
the sodium reduction is $118 million, with
food costs totaling $94 million annually from
rule implementation. The breakdown by
meal type of annual total food costs are $27
million for breakfast and $68 million for
lunch. Potential equipment costs are detailed
in the ‘‘Uncertainties/Limitations’’ section
below. The existing sodium limits will
remain in effect through the end of SY 2026–
2027, and there are no costs associated with
current limits already in effect.
TABLE 12: ESTIMATED COST OF SODIUM REDUCTION (MILLIONS), ADJUSTED
FOR ESTIMATED INFLATION TO SY 2024-2025
$118
Food and labor costs account for almost all
of the costs to produce a meal in a school
(about 45 percent for labor and 45 percent for
food, on average). The impact analysis of the
new sodium limits used the same method to
estimate labor costs that was used in the 2022
transitional standards rule RIA. It also
assumes a need for increased scratch
cooking, staffing changes, and time needed
for manufacturer product reformulation. The
USDA study, ‘‘Successful Approaches to
Reduce Sodium in School Meals,’’ found that
school districts served more fresh fruits and
vegetables to reduce sodium content. This
may cause a reduction in food costs if items
purchased to prep and serve fresh or to cook
from scratch are less expensive; however,
these costs may be offset by higher quantities
needed or additional foods needed to prepare
meals from scratch.
While meeting the 10 percent sodium
reduction in breakfast is possible with
products already available, the 15 percent
reduction for lunch may require some
product reformulation or new preparation
methods such as scratch-cooking which, in
turn, require changes in staffing and
equipment. This is supported by the USDA
study on ‘‘Successful Approaches to Reduce
Sodium in School Meals,’’ 64 in which
schools, Food Service Management
Companies, and manufacturers noted similar
effects from the original sodium targets in the
2012 rule. Previous studies have shown that
many schools have some capacity to conduct
scratch-cooking, but that new equipment and
more staff may be necessary to achieve recipe
reformulation and cooking or baking from
scratch.65 Because data have not been
collected since SY 2014–2015, it is possible
that further product reformulation and recipe
restructuring occurred prior to or during the
COVID–19 pandemic. Likewise, it is unclear
how much menus changed during the
pandemic and what the baseline level of
sodium in menus will be for SY 2022–2023
due to a lack of recent data. The USDA study,
‘‘Successful Approaches to Reduce Sodium
in School Meals,’’ also noted that reducing
sodium can be challenging, especially when
using pre-packaged products. Schools may
no longer purchase high-sodium items, and
manufacturers may eliminate certain product
lines.66 However, the FDA’s voluntary
sodium goals may have already led to the
reduced use of high-sodium pre-packaged
foods and reformulation of some products,
which may help to reduce the transition
challenges.
63 https://www.fda.gov/food/cfsan-constituentupdates/fda-issues-sodium-reduction-finalguidance.
64 Gordon, E.L., Morrissey, N., Adams, E.,
Wieczorek, A. Glenn, M.E., Burke, S & Connor, P.
(2019). Successful Approaches to Reduce Sodium
in School Meals Final Report. Prepared by 2M
Research under Contract No. AG–3198–P–15–0040.
Alexandria, VA: U.S. Department of Agriculture,
Food and Nutrition Service.
65 Standing, Kim, Joe Gasper, Jamee Riley, Laurie
May, Frank Bennici, Adam Chu, and Sujata DixitJoshi. Special Nutrition Program Operations Study:
State and School Food Authority Policies and
Practices for School Meals Programs School Year
2012–13. Project Officer: John R. Endahl. Prepared
by Westat for the U.S. Department of Agriculture,
Food and Nutrition Service, October 2016.
66 Gordon, E.L., Morrissey, N., Adams, E.,
Wieczorek, A. Glenn, M.E., Burke, S & Connor, P.
(2019). Successful Approaches to Reduce Sodium
in School Meals Final Report. Prepared by 2M
Research under Contract No. AG–3198–P–15–0040.
Alexandria, VA: U.S. Department of Agriculture,
Food and Nutrition Service.
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Analyses Related to Gradual Sodium
Reduction
A variety of factors may affect the
reduction of sodium in school meals,
including the short-term FDA sodium
voluntary targets, improved sodium
component Healthy Eating Index (HEI)
scores, an adjustment for actual consumption
of meals by students, and palatable reduction
over time. Additionally, a comparison to
sodium requirements in other organizations
and a summary of health benefits of sodium
reduction may inform further reduction of
sodium content in school meals. These
points may be considered alongside the
expected additional cost of the final rule
sodium limits.
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The FDA sodium voluntary targets are
designed to support a reduction in average
daily sodium intake of 12 percent nationwide
by targeting products across almost all
available food categories containing
commercially processed, packaged, and
prepared foods.67 An internal USDA analysis
of school foods that met or did not meet the
FDA voluntary food guidance used a
matching process between categories of food
products shown to have been on menus in
the SNMCS and the FDA food categories. For
products that did not meet the FDA
voluntary sodium reduction guidance, the
sodium content of these products was capped
at the FDA short-term targets across all the
potential food categories for the item to
simulate reduction in those targeted food
groups. This analysis found that when foods
served in school meals met the FDA
voluntary sodium reduction targets the
overall sodium content of menus decreased
by approximately 10 percent. Some foods
served in school meals, including milk, fresh
fruits and vegetables, and fresh cooked meats
are not targeted for sodium reduction because
most contain naturally occurring sodium.
Condiments/accompaniments, breads/grains,
combination entrees, some cheeses and a
variety of other foods are targeted, leading to
an estimated total reduction of 10 percent of
menu sodium content. As detailed in the rule
preamble, FDA’s goals are not intended to
focus on food or beverages that contain only
naturally occurring sodium, but rather, to
focus on items where actionable reductions
in sodium are feasible. The sodium limits in
this final rule account for naturally occurring
sodium levels in foods and beverages in the
current food supply. Therefore, foods and
beverages containing naturally occurring
sodium are not exempt from these sodium
limits; rather, the sodium limits in this final
rule account for naturally occurring sodium.
This analysis also showed that many
products were available in SY 2014–2015
that would meet a 10 percent sodium
reduction in breakfasts and lunches if menus
are changed to include these products. At
lunch, about 70 percent of accompaniments/
condiments and combination entrees
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available already met the FDA voluntary
sodium targets. At breakfast, 96 percent of
accompaniments and 85 percent of
combination entrees met the FDA sodium
targets. Replacing condiments and
combination entrees served at lunch would
require the most effort with regards to
sodium reduction through scratch cooking,
menu changes, and product reformulation.
However, minimal scratch cooking and
reformulation is needed to reduce sodium by
10 percent. It is of note that current FDA
voluntary targets are short-term and equal to
a 10 percent reduction when applied to the
NSLP and SBP menus,68 and this rule
finalizes a gradual 15 percent reduction for
the NSLP and 10 percent reduction for the
SBP.
The benefits of the new sodium limits are
best measured with the HEI component
scores. While the HEI is usually used to
measure nutritional quality for daily dietary
intake (ex. 24-hour recalls, food diaries), it
can also be used to evaluate the alignment of
single meals to the Dietary Guidelines. The
maximum score for sodium is 10, indicating
≤1.1 grams of sodium per 1,000 calories, and
the minimum score available is zero,
indicating ≥2.0 grams of sodium per 1,000
calories.69 A lower score indicates a higher
sodium level in foods (higher sodium
density), so a score of 10 is best and indicates
lower levels of sodium in line with the
Dietary Guidelines. This formula for scoring
the sodium component is the same in the
HEI–2010, HEI–2015, and HEI–2020 70
scoring versions.71 The SNMCS reports 72 use
the HEI–2010 version, but because the
sodium component score did not change in
2015, HEI scores in tables 13 and 14 could
be considered either HEI–2010 or HEI–2015.
Intakes between the minimum and maximum
levels of sodium are scored proportionately.
Tables 13 and 14 show the HEI scores for
68 Internal USDA analysis using FDA targets and
SNMCS data.
69 https://www.fns.usda.gov/how-hei-scored.
70 HEI–2020 was published in September 2023,
after this analysis was complete. For application to
school age children in this RIA, using HEI–2010,
HEI–2015 or HEI–2020 produces the same scores.
71 https://epi.grants.cancer.gov/hei/
comparing.html.
72 https://www.fns.usda.gov/school-nutrition-andmeal-cost-study.
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32105
menus that meet the sodium targets in the
transitional standards rule and as finalized in
this rule. The scores demonstrate improved
consistency with the goals of the Dietary
Guidelines through a decreased level of
sodium density. For lunch, the sodium limit
corresponds to an increase of 263 percent in
HEI sodium component scores over the five
years of implementation for elementary,
middle, and high schools, respectively (table
14). Breakfast menu HEI scores were already
10 for the sodium component in SY 2014–
2015 (table 13). However, further
improvement is necessary to reach sodium
intake levels recommended in the 2019
sodium dietary reference intakes (DRIs),73
which have also been recommended in the
Dietary Guidelines for Americans, 2020–
2025. HEI sodium component scores are a
good measure of sodium density, but Dietary
Reference Intakes for sodium also provide
recommendations for daily sodium intake by
age group in the U.S. and Canada.74 The
latest edition of the sodium and potassium
DRIs was released in 2019 and also included
Chronic Disease Reduction Risk (CDRR)
values that are a recommended maximum
daily intake level to prevent chronic disease
(table 15). Various organizations, including
both the USDA through the Dietary
Guidelines and non-Federal groups 75 76 have
indicated support for usage of these CDRR
proportions as the goal for sodium
consumption in school meals.
73 https://nap.nationalacademies.org/catalog/
25353/dietary-reference-intakes-for-sodium-andpotassium.
74 National Academies of Sciences, Engineering,
and Medicine; Health and Medicine Division; Food
and Nutrition Board; Committee to Review the
Dietary Reference Intakes for Sodium and
Potassium; Oria M., Harrison M., Stallings V.A.,
editors. Dietary Reference Intakes for Sodium and
Potassium. Washington (DC): National Academies
Press (US); 2019 Mar 5. Available from: https://
www.ncbi.nlm.nih.gov/books/NBK538102/ doi:
10.17226/25353.
75 https://www.cspinet.org/sites/default/files/
2022-03/CSPI%20Transition%20Final%20
Rule%20Comment%202022.pdf.
76 https://www.heart.org/-/media/Files/About-Us/
Policy-Research/Fact-Sheets/Access-to-HealthyFood/INFOGRAPHIC-Lowering-Sodium-in-SchoolFoods.pdf.
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Federal Register / Vol. 89, No. 81 / Thursday, April 25, 2024 / Rules and Regulations
TABLE 13: SODIUM LEVELS AND CORRESPONDING HEI SODIUM COMPONENT SCORES AT
BREAKFAST BY MAXIMUM CALORIE LEVEL
TABLE 14: SODIUM LEVELS AND CORRESPONDING HEI SODIUM COMPONENT
SCORES AT LUNCH BY MAXIMUM CALORIE LEVEL
TABLE 15. ESTIMATED SODIUM DIETARY REFERENCE INTAKES (CHRONIC DISEASE REDUCTION
77 SNMCS
Report Volume 4 Appendices I to P—
Tables J.1 to J.4 and Tables M.1 to M.4.
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that were not SBP participants.78 While
participants of school meal programs have
higher meal HEI scores, indicating a higher
adherence to the recommendations of the
Dietary Guidelines,79 there is room for
improvement overall. For sodium, there is
especially room for improvement in lunches
at all ages and in high school breakfasts. The
final rule sodium limits would improve these
scores even when accounting for foods
consumed that are not part of a reimbursable
meal.
78 SNMCS
Report Volume 4.
HEI–2010 score corresponds to the Dietary
Guidelines for Americans, 2010–2015.
79 The
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on average for non-participants across age/
grade groups. SBP participants had a
breakfast sodium component score of 9.6, 9.0,
and 6.7 for elementary, middle, and high
schools, respectively.66 Since both breakfast
and lunch consumption data include
competitive foods and foods brought from
home, it is difficult to compare the menu
sodium scores to the scores based on the
consumed amount of sodium. Overall lunch
HEI–2010 scores (scored out of 100),
including all elements of the meal consumed,
were 80.1 for NSLP participants and 65.1 for
students that were not NSLP participants.
Overall breakfast HEI–2010 scores were 66.1
for SBP participants and 58.9 for students
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School meal consumption data yields
differing HEI scores from the menu data
presented above. The sodium component HEI
scores of consumed lunches in SY 2014–2015
were 4.2 on average for NSLP participants of
all age/grade groups and a slightly better
score than 4.0 on average for nonparticipants.77 NSLP participants had a
lunch sodium component score of 4.7, 4.6,
and 3.0 for elementary, middle, and high
schools, respectively. For breakfast, sodium
component HEI scores in SY 2014–2015 were
8.7 on average for SBP participants and 7.9
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Federal Register / Vol. 89, No. 81 / Thursday, April 25, 2024 / Rules and Regulations
Other reasons to finalize a single sodium
reduction with a longer implementation
timeline include palatability and the need for
product reformulation. Manufacturers have
found that a 10 percent reduction in sodium
for individual products is manageable with
regards to product reformulation and
consumer approval in the past, as well as in
internal discussions with USDA.80 Various
studies agree with gradual reduction being
manageable for consumers both at an
individual and population level.81 82 83
Additionally, small reductions of sodium (2
to 5 percent) are generally not noticed by
consumers.84 The 15 percent and 10 percent
reduction will not affect every single food
product equally but will be spread across the
lunch and breakfast menus, respectively, at
varying levels. For instance, some products
may easily be reduced in sodium content by
20 percent, whereas only a 5 percent change
may be possible in others. Manufacturers also
may have existing lower sodium product
lines in their portfolio that they may be able
to use without needing to reformulate
existing products. Additionally,
manufacturers may already be making strides
in adjusting products as a result of the shortterm FDA voluntary sodium guidance that
was released in October 2021, especially with
additional updated guidance expected to
come out in 2024.
USDA completed a limited search of other
food service operations in the U.S. in order
to compare their sodium requirements to
those finalized in this rule. The CDC Food
Service Guidelines for Federal Facilities were
designed to be used in Federal, State, and
local government facilities, as well as
hospitals, health care facilities, colleges and
universities, private worksites, stadiums, and
recreation centers.85 This set of guidelines
recommends that all meals, defined as an
entre´e and two sides, contain ≤800
milligrams of sodium. Entrees alone should
contain ≤600 milligrams of sodium and all
side items alone contain ≤230 milligrams of
sodium. Though these guidelines are directed
toward adults, it is helpful that beverages are
included in these guidelines unlike other
available measures since the NSLP and SBP
require milk as part of the school food
pattern. The U.S. Army Food Program
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80 Cobb
L.K., Appel L.J., Anderson C.A.,
Strategies to reduce dietary sodium intake. Curr
Treat Options Cardiovasc Med. 2012;14(4):425–434.
doi:10.1007/s11936–012–0182–9.
81 Liem D.G., Miremadi F., Keast R.S., Reducing
sodium in foods: the effect on flavor. Nutrients.
2011;3(6):694–711. doi:10.3390/nu3060694.
82 Levings J.L., Cogswell M.E., Gunn J.P., Are
reductions in population sodium intake achievable?
Nutrients. 2014;6(10):4354–4361. Published 2014
Oct 16. doi:10.3390/nu6104354.
83 Dehmer S.P., Cogswell M.E., Ritchey M.D., et
al. Health and Budgetary Impact of Achieving 10Year U.S. Sodium Reduction Targets. Am J Prev
Med. 2020;59(2):211–218. doi:10.1016/
j.amepre.2020.03.010.
84 Drake S.L., Lopetcharat K., Drake M.A., Salty
taste in dairy foods: can we reduce the salt?
[published correction appears in J Dairy Sci. 2012
Dec;95(12):7429]. J Dairy Sci. 2011;94(2):636–645.
doi:10.3168/jds.2010–3509.
85 https://www.cdc.gov/obesity/downloads/
guidelines_for_federal_concessions_and_vending_
operations.pdf.
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Implementation Guide for Nutrition
Standards 86 and the Healthier Campus
Initiative Guidelines 87 also advise that lunch
and dinner meals should contain ≤800
milligrams of sodium. The National
Restaurant Association’s Kids Live Well
program 88 advises that at least two of the
children’s meal options served in restaurants
should contain ≤700 milligrams of sodium,
including at least two different food groups
(fruit, vegetable, non/low-fat dairy, meat/
meat alternative, and whole grains) and at
least one of the two food groups must be a
fruit or vegetable. No mention is made in the
Kids Live Well program materials if a
beverage is included as part of a meal when
calculating the total sodium content. An 8ounce carton of milk contains up to 130
milligrams of sodium, indicating that the
lunch sodium limits of 935 milligrams, 1,035
milligrams, and 1,080 milligrams for
elementary, middle, and high schools are
achievable relative to organization limits
when accounting for milk and the full meal
pattern requirements.
Health Benefits
The most important reason for sodium
reduction in school meals is the health
benefits. Closer alignment of school meals
with the goals of the Dietary Guidelines for
Americans, 2020–2025 is meant to promote a
healthy lifestyle and prevent chronic disease
by meeting dietary needs. During SY 2011–
2012, U.S. elementary, middle, and high
school age school children consumed about
3,050 mg, 3,115 mg, and 3,565 mg of sodium
daily, respectively.89 This exceeds the
recommended daily sodium DRI values 90 for
school age children; 1,500 mg for age 4 to 8
years, 1,800 mg for age 9 to 13 years, and
2,300 mg for age 14 to 18 years. Sodium DRI
values are presented by age group so there is
some overlap when comparing to school age
groups.
Reducing sodium intake has been shown to
reduce blood pressure in children, birth to
age 18 years. This was shown in a systematic
review conducted in 2015 by the Dietary
Guidelines Advisory Committee (DGAC).91
The 2015 DGAC also conducted an update on
the 2013 Institute of Medicine (IOM) (now
NASEM) and National Heart, Lung, and
86 https://quartermaster.army.mil/jccoe/
Operations_Directorate/QUAD/nutrition/
Implementation-Guide-for-Go-for-Green-Army.pdf.
87 https://www.ahealthieramerica.org/healthiercampus-initiative-20#resource_grid-292.
88 https://restaurant.org/getmedia/f829f35b-917a432d-8192-9b1c79864d0d/kids-livewell-gettingstarted.pdf.
89 Quader ZS, Gillespie C, Sliwa SA, et al.
Sodium Intake among US School-Aged Children:
National Health and Nutrition Examination Survey,
2011–2012. J Acad Nutr Diet. 2017;117(1):39–47.e5.
doi:10.1016/j.jand.2016.09.010.
90 2019 Sodium Chronic Disease Reduction Risk
(Dietary Reference Intake) values.
91 2015 Dietary Guidelines Advisory Committee
and Nutrition Evidence Library. Systematic
Reviews of the Cross-Cutting Topics of Public
Health Importance Subcommittee. 2015 Dietary
Guidelines Advisory Committee Project.
Alexandria, VA: U.S. Department of Agriculture,
Food and Nutrition Service, Center for Nutrition
Policy and Promotion, March 2017. Available at:
https://nesr.usda.gov/2015-dietary-guidelinesadvisory-committee-systematic-reviews.
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Blood Institute (NHLBI) systematic reviews
that evaluated the relationship between
sodium intake and the risk of cardiovascular
disease (CVD). The DGAC found agreement
with the NHLBI review, which concluded
that ‘‘a reduction in sodium intake by
approximately 1,000 mg per day reduces
CVD events by about 30 percent’’ and that
‘‘higher dietary sodium intake is associated
with a greater risk for fatal and nonfatal
stroke and CVD.’’ The DGAC also found
agreement with the IOM review that found
that there is evidence to support a positive
relationship between higher levels of sodium
intake and risk of CVD and is consistent with
blood pressure serving as a surrogate
indicator of CVD risk.80 Blood pressure
tracks over the life course, meaning that
reducing sodium intake and maintaining a
healthy blood pressure level in childhood
can benefit individuals into adulthood.92 A
recent study suggests that among the three
major dietary groups addressed in this rule
(sodium, added sugars, and whole grains),
children’s consumption of sodium at the
Dietary Guidelines, 2020–2025
recommendations into adulthood has the
largest potential health and economic
impacts. The maintenance of this dietary
pattern from school age was associated with
5,580 fewer adult deaths from CVD and
cancer and $8.26 billion in reduced
healthcare-related costs per year.93 Evidence
is strong to support the conclusion that
reduction in sodium intake reduces blood
pressure and in turn reduces CVD risk and
CVD events. A gradual reduction in sodium
content of school meals will likely contribute
to an improvement of dietary habits, blood
pressure, and CVD risk factors in NSLP and
SBP participants that could track into
adulthood.
Meats/Meat Alternates at Breakfast
This rule codifies the combined grains and
meats/meat alternates meal component at
breakfast and removes the requirement for
schools to offer 1.0 ounce equivalent of
grains each day at breakfast, included from
the 2020 proposed rule Simplifying Meal
Service and Monitoring Requirements in the
National School Lunch and School Breakfast
Programs. Schools may offer grains, meats/
meat alternates, or a combination of both to
meet this combined component requirement.
The minimum daily requirement (1 ounce
equivalent) and minimum weekly
requirement (7–9 ounce equivalents,
depending on the age/grade group) for this
component remain the same. This rule allows
for these daily and weekly requirements to be
met with grains and/or meat/meat alternates.
This provision does not require school food
authorities to change their breakfast meal
service. Schools should balance this
92 Cheng S, Xanthakis V, Sullivan LM, Vasan RS.
Blood pressure tracking over the adult life course:
patterns and correlates in the Framingham heart
study. Hypertension. 2012;60(6):1393–1399.
doi:10.1161/HYPERTENSIONAHA.112.201780.
93 Wang L, Cohen J, Maroney M, et al. Evaluation
of health and economic effects of United States
school meal standards consistent with the 2020–
2025 dietary guidelines for Americans. The
American Journal of Clinical Nutrition. 2023. DOI:
https://doi.org/10.1016/j.ajcnut.2023.05.031.
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flexibility while still offering grains to ensure
adequate nutrition of school breakfasts. In SY
2014–2015, whole grain-rich offerings in the
SBP helped school breakfasts meet the
Dietary Guidelines recommendations for
grains.94 This change allows school food
authorities the flexibility to develop SBP
menus that include meats/meat alternates
without a requirement to serve a minimum
amount of grains. This change is not
anticipated to impact program costs, but
rather, to provide flexibility for school food
authorities to balance resources and meal
pattern requirements with student
preferences when planning SBP menus.
Substituting Vegetables for Grains in Tribal
Communities
Current regulations allow program
operators in American Samoa, Puerto Rico,
and the U.S. Virgin Islands to serve
vegetables such as yams, plantains, or sweet
potatoes to meet the grains or breads
component. This rule allows school food
authorities and schools that are tribally
operated, operated by the Bureau of Indian
Education, and that serve primarily
American Indian or Alaska Native children to
serve vegetables to meet the grains
requirement in NSLP and SBP. For SFSP and
CACFP, this final rule allows sponsors,
institutions, and facilities, as applicable, that
serve primarily American Indian or Alaska
Native children to substitute vegetables for
grains or breads. This rule also allows all
program operators in Guam and Hawaii to
substitute vegetables for grains or breads in
NSLP, SBP, SFSP, and CACFP. This final
rule clarifies that under this provision, any
vegetable may substitute for the grains or
bread component. However, USDA
emphasizes the importance of traditional and
culturally relevant vegetables, including
traditional vegetables such as breadfruit and
prairie turnips, for grains.
USDA has limited data regarding
consumption of these foods in the SBP and
NSLP and the cost of these specific foods to
schools serving American Indian and/or
Alaska Native children specifically.
However, SNMCS data from SY 2014–2015
indicate that starchy vegetables, including
potatoes, and red/orange vegetables such as
sweet potatoes, cost $0.18 per portion on
average and bread/grain items also cost $0.18
per portion on average. Based on this data we
expect this provision will lead to minimal, if
any, cost change per meal. Further, program
operators would not be required to make any
changes to their menus under this rule and
may continue to serve grain items to meet the
grains component requirement if that is most
cost-effective.
Traditional Indigenous Foods
This rule states in regulation that
traditional Indigenous foods may be served
in reimbursable school meals. USDA
acknowledges that many traditional
Indigenous foods may already be served in
school meal programs; the goal of this
provision is to draw attention to this option
and support efforts to incorporate these foods
into school meals. By ‘‘traditional food,’’
USDA means the definition included in the
Agriculture Improvement Act of 2014 95
which defines traditional food as ‘‘food that
has traditionally been prepared and
consumed by an American Indian tribe,’’
which includes wild game meat, fish,
seafood, marine mammals, plants, and
berries.
Due to limited data regarding the
consumption and cost of traditional
Indigenous foods in the SBP and NSLP, no
cost analysis can be done to predict how this
provision would affect child nutrition
programs. Traditional Indigenous foods may
be served in school meals under existing
guidance, and this provision encourages
rather than requires schools to serve
traditional Indigenous foods, so it is expected
to result in a negligible annual cost change
for food service operations.
Afterschool Snacks
USDA aligns NSLP snack requirements for
school-aged children with the CACFP snack
requirements in this final rule, effective SY
2025–2026. NSLP requirements for snacks
served to infants and preschool-aged children
remain in effect. For school-aged children,
under this final rule, reimbursable snacks
include two of the following five
components: milk, vegetables, fruits, grains,
and meats/meat alternates. USDA also
requires that NSLP snacks adapt these
existing CACFP snack requirements: (1) only
one of the two components served at snack
may be a beverage; (2) milk served to
children age 6 and older must be fat-free or
low-fat and may be flavored or unflavored;
(3) grain-based desserts do not count toward
meeting the grains requirement, and (4) foods
that are deep-fat fried on-site are not
reimbursable NSLP snacks. Additionally, the
added sugars product limits for breakfast
cereals and yogurt finalized in this rule apply
to NSLP snacks, effective SY 2025–2026. The
component options for afterschool snacks are
the same categories as previously, aside from
fruits and vegetables now being separate
components.
The number of afterschool snacks served
represents four percent of the number of
lunches served, based on 2023 data.96 Of
those snacks served, over 80 percent were
breads/grains, fruits, and milk. SNMCS data
from SY 2014–2015 indicate that under half
of snack items served were beverages. Milk
served was already meeting the final rule
requirement to be fat-free or low-fat, flavored
or unflavored. Combination entrees were not
considered in this analysis because they are
very rarely served as snacks.
This provision will require schools to
replace grain-based desserts with other grains
and to limit breakfast cereals and yogurts to
those that meet the product-based added
sugars limits, upon implementation. Cereal
costs the same per dry ounce regardless of
added sugars content, so there would be no
cost change. In SY 2014–2015, grain-based
desserts made up 14 percent of items served
at snacks, and about half of the grain items
in snacks were grain-based desserts. On
average, grain-based desserts cost $0.35 per
ounce equivalent and other grain items cost
$0.19 per ounce equivalent, about a $0.22
difference after adjusting for inflation.
Switching those to grains/breads that are not
grain-based desserts would save
approximately $9.4 million. Since yogurt was
not as widely served as a snack item, the cost
of switching to yogurt products with no more
than 12 grams of added sugars per 6 ounces—
an increase of $0.05 per portion—is under
half a million dollars. In total, the final rule
that aligns NSLP snack requirements with
CACFP snack requirements is estimated to
save around $9 million on average (table 16).
TABLE 16: ESTIMATED COST OF AFTERSCHOOL SNACKS RULE BY EACH AFFECTED PRODUCT
94 U.S. Department of Agriculture, Food and
Nutrition Service, Office of Policy Support, School
Nutrition and Meal Cost Study, Final Report
Volume 2: Nutritional Characteristics of School
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95 Agriculture Improvement Act of 2014, as
amended (25 U.S.C. 1685(b)(5)).
96 USDA—Food and Nutrition Service National
Database Publicly Available Data.
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(MILLIONS), ADJUSTED FOR ESTIMATED INFLATION TO SY 2024-2025
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Substituting Vegetables for Fruits at
Breakfast
This rule establishes that schools can
continue to substitute vegetables for fruits at
breakfasts but simplifies the vegetable variety
requirement. Under this final rule, schools
that substitute vegetables more than one day
per school week will be required to offer
vegetables from at least two subgroups. The
vegetable subgroups include starchy; red and
orange; dark green; beans, peas, and lentils;
and ‘‘other’’ vegetables. Starchy vegetables
are consumed at a higher rate in children and
adolescents compared to the other vegetable
subgroups, so this provision continues to
encourage consumption of a variety of
vegetables at breakfast, in cases where
schools opt to substitute vegetables for fruit.
SNMCS data from SY 2014–2015 showed
that only about three percent of fruits were
substituted for vegetables at breakfast. Of the
servings of vegetables substituted for fruits in
SY 2014–2015, half were starchy, and the
other half were primarily red and orange
vegetables. USDA expects more vegetables to
be offered in breakfast meals in order to meet
32109
the required reduction in added sugars. This
may lead to vegetables being offered
alongside servings of eggs or in breakfast
burritos, for example. However, it is also
expected that fruits will be served in most
breakfasts since fruits are easy to incorporate
in meals and menus, and fresh fruits contain
no added sugars, only naturally occurring
sugars. Depending on the local prices, school
food authorities will decide the most costeffective menus for their operations, but this
provision continues to promote vegetable
variety at breakfast.
TABLE 17: ESTIMATED ANNUAL COST OF SUBSTITUTING VEGETABLES FOR FRUITS AT BREAKFAST (MILLIONS),
ADJUSTED FOR ESTIMATED INFLATION TO SY 2024-2025
Nuts and Seeds
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This rule allows nuts and seeds to credit
for the full meats/meat alternates component
in all child nutrition programs and meals. It
removes the 50 percent crediting limit for
nuts and seeds at breakfast, lunch, and
supper. USDA expects that nuts and seeds
will most often continue to be offered in
snacks or in small amounts at breakfast,
lunch, or supper alongside other meats/meat
alternates. Nuts and seeds are most often
offered in school meals in the form of a nut
butter (or nut butter alternative, such as soy
or sunflower seed butter) in a sandwich.
About 17 percent of daily lunch menus in
SY 2014–2015 offered ‘‘other protein items’’
in the form of eggs, seeds, nuts, beans, and
peas.97 Of combination entrees served in the
NSLP, about six percent were peanut butter
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and jelly sandwiches,98 including variations
with sunflower seed butter and almond
butter.99 Nuts, seeds, or nut/seed butters
represented less than one percent of meat
and meat alternate food items offered on
NSLP menus 100 Very few instances of
serving whole nuts and seeds were found in
this analysis at either breakfast or lunch.
Because USDA expects that nuts and seeds
will be minimally offered as the sole meat/
meat alternate at a meal and because this
change may take shape in a variety of
combinations across menus, this element of
the rule is not expected to result in a
measurable per-meal cost change. The
saturated fat content of school meals must be
less than ten percent of total calories per
week and replacing some lean sources of
meat with nuts or seeds may result in higher
saturated fat content of meals. When creating
menus, operators must be aware of the
saturated fat content of meals if offering more
nuts and seeds. Operators who serve
combination entrees using nut butters (e.g.,
peanut butter and jelly sandwich) will also
need to consider requirements related to
whole grains, although SY 2014–2015 data
indicate that over 85 percent of peanut butter
and jelly served were prepared using whole
grain-rich bread.
Beans, Peas, and Lentils at Lunch
This final rule codifies the flexibility to
allow school food authorities to count beans,
peas, and lentils offered as a meat alternate
at lunch toward the weekly beans, peas, and
lentils vegetable subgroup requirement,
included from the 2020 proposed rule
Simplifying Meal Service and Monitoring
98 Of these peanut butter and jelly sandwiches,
over 85 percent were made with whole grain-rich
bread.
99 SNMCS Study Data, USDA internal analysis.
100 SNMCS Study Data, USDA internal analysis.
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Requirements in the National School Lunch
and School Breakfast Programs. Under this
option, as with the current requirement,
schools would determine which overall meal
component the beans, peas, and lentils
would count toward: the vegetable meal
component, or the meats/meat alternates
meal component. This change aims to
facilitate service of the legumes subgroup;
compared to other vegetable subgroups, the
legumes subgroup requirement has proven to
be more difficult for some school food
authorities to meet.
Legumes are often an ingredient in
combination entre´es. Such entre´es are
common in lunch menus, especially in high
schools where about 25 percent of daily
menus include burritos, tacos, nachos,
quesadillas, fajitas, or enchiladas.101
Children benefit from the array of essential
nutrients legumes offer, including protein
and fiber, regardless of whether legumes are
labeled as a vegetable or meat alternate for
menu planning purposes. The daily and
weekly menus must still meet minimum
quantity requirements for vegetables, which
are unchanged. This flexibility will not result
in a reduction in total calories or vegetables
served, but rather allows school food
authorities the ability to develop menus that
better reflect student preferences. The daily
and weekly meat/meat alternate quantities
are also unchanged. There are negligible
impacts to program costs associated with this
flexibility.
101 U.S. Department of Agriculture, Food and
Nutrition Service, Office of Policy Support, School
Nutrition and Meal Cost Study, Final Report
Volume 2: Nutritional Characteristics of School
Meals. Project Officer: John Endahl. Alexandria,
VA: April 2019. Available at: https://
www.fns.usda.gov/school-nutrition-and-meal-coststudy.
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An internal USDA analysis simulated
switching between 10 and 25 percent of fruit
servings at breakfast to vegetables. This
simulation assumed that half of the
vegetables would be starchy vegetables and
the other half would be non-starchy vegetable
subgroups (red and orange; dark green; beans,
peas, and lentils, and ‘‘other’’ vegetables),
following the pattern of substitution shown
in SNMCS. In SY 2014–2015, starchy
vegetables served at breakfast and lunch cost
approximately $0.18 per portion, and all
other vegetables served cost approximately
$0.20 per portion, on average. Fruits served
at breakfast were $0.21 per portion, on
average. Using these prices per portion and
the number of breakfasts served in 2023,
there would be a savings ranging from $4
million to $10 million resulting from a
substitution of 10 to 25 percent of fruit
servings with vegetable servings (table 17).
97 SNMCS
-$10
-$4
COST
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Competitive Foods—Bean Dip Exemption
In this final rule, USDA is revising the
terminology for this provision based on
public comment. Instead of referring to
‘‘hummus’’ in regulation, this final rule will
refer to ‘‘bean dip,’’ which includes hummus.
This change reflects input received through
a public comment, which noted that the
word ‘‘hummus’’ already has a culturally
significant meaning and is traditionally made
from chickpeas (rather than any variety of
beans, peas, or lentils). This rule adds bean
dip to the list of foods exempt from the total
fat standard in the competitive food, or Smart
Snack, regulations. Smart Snacks are foods
that are sold to students outside of the school
meal programs, such as foods sold a la carte,
in school stores, in vending machines, or in
any other venues where food is served to
students during school hours. Bean dip is
already permitted as a part of a reimbursable
school meal but with this change could also
be sold as a Smart Snack. A specific
definition of bean dip is also given as part
of this provision. Bean dip will still be
subject to the saturated fat standard, which
limits competitive foods to less than 10
percent of calories from saturated fat per item
as packaged or served and the sodium
standard in which snacks must be 200 mg of
sodium or less and entrees must be 480 mg
of sodium or less.102
USDA does not collect or track competitive
food sales, so it is unclear the exact cost
change to school food authorities that will
result from this provision. A served portion
of bean dip was comparable in price to a
served portion of regular or reduced-fat
peanut butter according to SNMCS data.
Peanut butter and bean dip are comparable
in that they are served as part of a snack
alongside another food (i.e. pretzels, bread,
vegetables, apple slices, etc.). As a result,
USDA expects a minimal cost change for
school food authorities that choose to sell
bean dip as a competitive food due to this
provision. Individual schools often sell
competitive foods to complement
reimbursable foods and maintain a revenueneutral operation; therefore, USDA assumes
that schools will opt to sell bean dip as a
competitive food if they determine it is
financially beneficial. When data were
collected in SY 2014–2015, bean dip was
served minimally in the NSLP, but it is likely
the popularity of bean dip among students
has increased since that time, so allowing an
additional option for schools could be
beneficial to schools.
Meal Modifications
This rule updates the regulatory text for
meal modifications, removes the term
‘‘medical or other special dietary needs’’
from the regulations, authorizes State
licensed healthcare professionals and
dietitians to write a medical statement in
support of a meal modification for a
disability, and defines the term ‘‘State
licensed healthcare professional’’ in
regulation. These changes are not expected to
impact program costs, but rather, clarify
procedures for State agencies, schools,
102 https://fns-prod.azureedge.us/sites/default/
files/resource-files/smartsnacks.pdf.
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institutions, and facilities working to meet
the needs of participants with disabilities
that restrict their diets. This provision was
included in the 2020 proposed rule
Simplifying Meal Service and Monitoring
Requirements in the National School Lunch
and School Breakfast Programs.
Clarification of Requirements for Potable
Water
This final rule maintains the requirement
that schools make potable water available
and accessible without restriction to children
at no charge during the meal service, and
clarifies in regulation that the potable water
must be ‘‘plain.’’ This is a change from the
2020 proposed rule, where this provision was
introduced, Simplifying Meal Service and
Monitoring Requirements in the National
School Lunch and School Breakfast
Programs, which would have allowed
schools to offer calorie-free, naturally
flavored, noncarbonated water to meet the
potable water requirement, without requiring
that plain potable water be offered. This
change from the proposed rule was made in
response to public comments that
emphasized the importance of ensuring
children have access to plain potable water.
This change is not expected to increase costs,
as schools will be in compliance with the
potable water requirement by continuing to
offer plain potable water.
Synthetic Trans Fat
This final rule change eliminates the
requirement for SBP, NSLP, and competitive
foods to have zero synthetic trans fat.103 FDA
regulations removed synthetic trans fat from
the United States food supply, with a final
compliance date of January 1, 2020, and thus,
the requirement to monitor synthetic trans fat
in the school meal programs is unnecessary.
This final rule eliminates regulations that are
not necessary since synthetic trans fat is no
longer in the food supply. This change will
align Program regulations with the food
supply standards. There are no impacts to
program costs associated with this change.
This provision was included in the 2020
proposed rule Simplifying Meal Service and
Monitoring Requirements in the National
School Lunch and School Breakfast
Programs.
Professional Standards: Hiring Exemption for
Medium and Large Local Educational
Agencies
USDA codifies allowing State agency
discretion in the hiring of a school nutrition
program director in a medium or large local
educational agency for individuals who have
10 years or more of school nutrition program
experience but who lack a bachelor’s or
associate’s degree. In other words, this
provision allows for a substitution of
experience for education to widen the
potential applicant pool for school nutrition
program director positions. A high school
diploma or GED is still required, but this
shift may help with hiring challenges
experienced in recent years. Instead of
education being the only path to promotion,
103 This restriction does not apply to naturally
occurring trans fats, which are present in meat and
dairy products.
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substantial experience can be an alternative
path. Directors hired under this provision are
encouraged to work toward a degree related
to nutrition and/or business, but this is not
required. This rule also clarifies in regulation
that State agencies may determine what
counts as ‘‘additional educational
experience’’ for the hiring standards.
This provision is estimated to have no cost
impact. Codifying this standard allows State
agencies more discretion in hiring selection,
but States are not required to change current
practices. It is unclear exactly how many
school food authorities this will affect and
how many individuals have 10 years or more
of experience and could be promoted to
director positions. However, USDA has
recently received requests from State
agencies to substitute school nutrition
program experience for a higher degree in
order to fill existing vacancies. Also, in
response to USDA’s 2018 professional
standards proposed rule,104 USDA received
13 comments (out of 76 total comments) that
mentioned alternatives to the education
requirement. Of those, 9 specifically
recommended experience as a substitute for
a degree, with 10 years of experience being
the most common suggestion. Data will be
collected by USDA between SY 2024–2025
and SY 2029–2030 to support ongoing
assessment of the effects of this rule change.
In 2017, around 8.3 million U.S. workers (5.4
percent) were employed in food preparation
and serving-related occupations.105
Employment in this category is beginning to
recover from COVID-era challenges that
began in 2020. Of the food service managers
across the U.S. in 2019 and 2021, 9.6 percent
had less than a high school diploma, 28.6
percent had a high school diploma or
equivalent, and 25.7 percent had some
college but no degree.106 Thirty-six percent of
food service managers had an associate’s
degree or higher level of education. For
school food authority directors specifically, a
recent USDA study indicated that 12 percent
of school food authority directors had
advanced degrees, 29 percent had bachelor’s
degrees, 13 percent had associate’s degrees,
20 percent had some college but no degree,
and 26 percent had high school diplomas.107
The study also found that directors at larger
school food authorities had higher levels of
educational attainment. Comparing school
food authority directors to food service
managers across the U.S., school food
authority directors have a higher level of
education on average than food service
104 https://www.federalregister.gov/documents/
2018/03/06/2018-04233/hiring-flexibility-underprofessional-standards.
105 https://www.census.gov/library/stories/2022/
07/how-food-service-transportation-workers-faredbefore-pandemic.html.
106 https://www.bls.gov/emp/tables/educationalattainment.htm.
107 Urban location and low poverty level of the
SFA were also correlated with higher educational
attainment among SFA directors. USDA, FNS,
Office of Policy Support, School Nutrition and Meal
Cost Study, Final Report Volume 1: School Meal
Program Operations and School Nutrition
Environments, prepared by Mathematica Policy
Research and Abt Associates, April 2019, pp. 34–
35, https://fns-prod.azureedge.net/sites/default/
files/resource-files/SNMCSVolume1.pdf.
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managers, yet about 46 percent of school food
authority directors have no degree. As a
result, it is likely that a substantial
percentage of operations could benefit from
the ability to promote based on experience
rather than education level.
Buy American
This final rule seeks to strengthen the Buy
American requirement but also acknowledges
that purchasing domestic food products is
not always feasible for schools. USDA
maintains the current two limited exceptions
to the Buy American provision and will also
phase in a new threshold limit for school
food authorities using these exceptions. The
two exceptions apply when: (1) the product
is not produced or manufactured in the U.S.
in sufficient and reasonably available
quantities of a satisfactory quality; or (2)
competitive bids reveal that the costs of a
U.S. product are significantly higher than the
non-domestic product. Consistent with
current USDA guidance, this final rule
clarifies in regulation that it is the
responsibility of the school food authority to
determine whether an exception applies.
With this final rule, USDA institutes a
phased approach over seven school years to
reach a 5 percent ceiling on the non-domestic
commercial foods a school food authority
may purchase per school year. The phased
approach would be the following:
• Beginning in SY 2025–2026, the nondomestic food cost cap will be 10 percent.
• Beginning in SY 2028–2029, the nondomestic food cost cap will be 8 percent.
• Beginning in SY 2031–2032, the nondomestic food cost cap will be 5 percent.
School food authorities will be required to
maintain documentation regarding use of an
exception as well as to demonstrate that the
percent non-domestic food costs of total
commercial foods purchased per year are not
more than the cap for that school year.
Beginning in SY 2031–2032, the
documentation must demonstrate that
exceptions were used for no more than 5
percent of total commercial foods purchased
per year. In addition, in response to public
comment, USDA is including that when a
school food authority purchases a food item
found on the Federal Acquisition Regulations
(FAR) 25.104 Nonavailable articles list, no
further documentation is required, upon
implementation of this final rule. There still
may be individual school food authorities
that cannot meet the threshold. USDA will
work in concert with State agencies during
implementation to provide needed technical
assistance and guidance, and if, appropriate,
an accommodation for temporary relief from
the requirement as the State agency works
with the school food authority on increasing
their domestic purchases.
This rule will codify the requirement to
maintain documentation for an exception,
while decreasing the amount of required
documentation compared to current
practices. To supplement this
documentation, USDA will continue to
collect information and data on the Buy
American provision and school food
authority procurement. This final rule will
require all school food authorities to include
the Buy American provision in documented
procurement procedures, solicitations,
contracts for foods and food products
procured using informal and formal
32111
procurement methods, and in awarded
contracts. State agencies will verify the
inclusion of this language when conducting
reviews. Additionally, this final rule codifies
a definition of ‘‘substantially,’’ as well as a
clarification of requirements for harvested,
farmed, and wild caught fish.
The Food and Nutrition Service Child
Nutrition Program Operations Study 108
collected data on Buy American exceptions
during SY 2017–2018. This study found that
an average of 8.5 percent of total food
expenditures were purchased under
exceptions among school food authorities
that used an exception to the Buy American
provision. During SY 2017–2018, 25.7
percent of school food authorities used an
exception to the Buy American provision.
Based on this data, it is likely that the
majority of school food authorities already
meet the final rule ceiling on the nondomestic commercial foods a school food
authority may purchase per school year.
Around a quarter of school food authorities
may need to decrease their purchase of nondomestic commercial foods to reach the 5
percent limit starting in SY 2031–2032.
Among the school food authorities using an
exception to the provision, the reasons cited
included: limited supply of the commodity
or product (88 percent), increased costs of
domestic commodities or products (43
percent), and quality issues with available
domestic commodities or products (21
percent). The exceptions to the Buy
American provision will help school food
authorities control costs of purchasing
domestic food products despite the eventual
5 percent ceiling.
TABLE 18: USE OF EXCEPTIONS BY SCHOOL FOOD AUTHORITY CHARACTERISTICS
5.9
Some school food authorities will be more
affected by the final rule Buy American
provision than others (table 18). School food
authorities that are small, located in towns,
and that had either a low or high percentage
of students approved for free and reducedprice meals used exceptions for more than
the 8.5 percent average of food expenditures.
108 Child Nutrition Program Operations Study
(CN–OPS–II) Report: School Year 2017–2018.
https://fns-prod.azureedge.us/sites/default/files/
resource-files/CNOPS-II-SY2017-18.pdf.
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School food authorities falling in these
groups may have the most difficulty meeting
the Buy American provision finalized in this
final rule. Larger school food authorities
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Federal Register / Vol. 89, No. 81 / Thursday, April 25, 2024 / Rules and Regulations
(>999 students), those in suburban, city or
rural environments, and those that have 30
to 59 percent of students approved for free
and reduced-price meals are already closer to
the final rule limit of 5 percent and may have
less difficulty complying with the change.
For the 26 percent of school food
authorities that used an exception to the Buy
American provision during SY 2017–2018,
USDA expects they will incur some costs
associated with the need to update menus
and/or update purchasing practices to meet
the five percent ceiling. These costs are
included in the regulatory familiarization
cost totals that are detailed in the
‘‘Administrative Costs’’ section above. Using
SY 2009–2010 total food expenditure data
from the School Food Purchase Study, we
estimated the difference in food costs needed
to reach the 5 percent threshold for the 26
percent of school food authorities that used
exceptions in SY 2017–2018. Of those school
food authorities that used an exception, 43
percent sought exemptions based on cost.
The majority of those school food authorities
(70 percent) used a cost threshold of 30
percent or less when determining whether a
cost is significantly higher for a domestic
commodity or product, warranting a use of
exception. Therefore, we assume that, on
average, the cost of purchasing domestic
products will be 15 percent higher for those
affected purchases.
Based on the assumption that domestic
products cost 15 percent more on average,
food cost impacts vary by each phase over
seven school years (table 19). Beginning in
SY 2025–2026, school food authorities may
use exceptions to purchase non-domestic
foods for 10 percent of total food cost
expenditures. This is estimated to have
negligible annual cost impact due to a 10
percent ceiling being higher than the 8.5
percent average among school food
authorities using exceptions. However, some
school food authorities such as those in
towns (table 18) may need to make an
incremental shift in food purchasing to meet
the 10 percent limit, or the State agency may
seek an accommodation for temporary relief
from the requirement if the school food
authority needs additional support. In SY
2028–2029, the next phase of the Buy
American provision is an 8 percent ceiling
that is estimated to have a food cost impact
of $0.40 million annually. We estimate a
nearly $3 million annual total food cost
increase once the phased in non-domestic
foods ceiling reaches 5 percent in SY 2031–
2032. Based on the data mentioned in the
previous paragraph, the proposed rule
estimated that 43 percent of the cost
difference of using exemptions for 5 percent
of food purchases instead of the 8.5 percent
average is approximately $20 million. A 15
percent increase in that cost equals
approximately $3 million. Proportionately,
the cost of moving from the 8.5 percent
average to 8 percent in SY 2028–2029 would
have a food cost of approximately $0.40
million annually. In SY 2031–2032 and
beyond when the ceiling reaches 5 percent
we estimate a $3 million annual total food
cost increase.
Additionally, USDA estimates that the
final rule record keeping requirement to
include that school food authorities maintain
documentation when using an exception and
that school food authorities include language
requiring Buy American in all procurement
procedures, solicitations, and contracts and
maintain such documentation. While the
PRA section of this rule includes burden
estimates associated with including and
maintaining language requiring Buy
American in all contracting documents and
procurement procedures, USDA has
promoted this as a best practice for years.
Based on this longstanding guidance and
public comments to the proposed rule that
this is already in practice to some extent,
USDA estimates half of school food
authorities will develop and maintain
changes to contracting documentation record
each year, and that it takes approximately 20
hours NSLP and 10 hours for SBP 109 to
complete the record keeping requirement for
each set of contracting and procurement
documents. This results in a total of 270,535
burden hours. When using the latest hourly
compensation of public administration in
state and local government from 2022 of
$54.05,110 the cost of this requirement is $15
million in SY 2024–2025. For those school
food authorities that are not already
including this information in their
procurement documents, we expect this is a
one-time change that will be in place by SY
2025–2026 and annual maintenance will
happen as part of their normal administrative
processes.
For documenting exceptions to the nondomestic food purchase cap, USDA estimates
all school food authorities (18,495 total) will
develop and maintain 10 records each year
per NSLP and SBP, and that it takes
approximately 15 minutes 111 to complete the
record keeping requirement for each record
documenting an exception. This results in a
total of 89,030 annual burden hours. The
additional cost of this reporting requirement
is nearly $5 million annually. In total, USDA
estimates that the final rule Buy American
provision will cost $15 million leading up to
SY 2025–2026 and approximately $5 million
to $8 million annually starting in SY 2025–
2026 with both food costs and record keeping
included (table 19). USDA acknowledges that
the estimated cost of this provision will add
to school food authority costs, potentially
reducing funds for other areas of spending.
However, it will be at school food authority
discretion how funds are shifted to meet the
threshold for non-domestic foods. USDA
does not anticipate that this provision will
have any effect on the ability of school food
authorities to meet school meal nutrition
requirements.
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Geographic Preference
In this rulemaking USDA is expanding
geographic preference options by allowing
locally grown, raised, or caught as
procurement specifications (a written
description of the product, or service that the
vendor must meet to be considered
109 As explained in the PRA (Paperwork
Reduction Act program).
110 Using the U.S. Bureau of Labor Statistics series
ID of CMU3019200000000D of total compensation
cost per hour worked for state and local government
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responsive and responsible) for unprocessed
or minimally processed food items in the
child nutrition programs. This is intended to
increase the procurement of local foods and
ease procurement challenges for operators
interested in sourcing food from local
producers. USDA requested public input on
whether respondents agree that this
provision would ease procurement
challenges for child nutrition program
operators or if it would encourage smallerscale producers to submit bids to sell foods
to child nutrition programs. No specific cost
impact is being estimated for this provision
workers in public administration industries
(https://data.bls.gov/cgi-bin/dsrv).
111 See final rule Paperwork Reduction Act (PRA)
burden charts.
112 Record keeping costs are total annual
estimates for the final Buy American provision, not
estimates per phase of implemented cap. No
inflation adjustment was completed for record
keeping costs since they are not food costs or based
on a factor of food costs.
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Table 19: Estimated Annual Cost (millions) of Buy American Provision Phases by Implementation Year, Adjusted for
Estimated inflation to SY 2024-2025
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since USDA does not have any applicable
data, but USDA assumes that this option will
be used at school food authority discretion
depending on individual school budgets, the
availability of local products, and other
school and region-specific factors. USDA
research found that among school food
authorities participating in Farm to School,
85 percent served at least some local foods,
and about 20 percent of participating school
food authorities’ total food spending was on
local foods in School Year 2018–2019. In this
same period, one-fifth of participating school
food authorities used geographic preference
in its current form to prioritize local foods in
the bid or proposal evaluation process.113
Therefore, the expansion of geographic
preference options may facilitate increased
local food purchases by school food
authorities at their discretion.
Miscellaneous Changes
This section establishes a variety of
miscellaneous changes and updates to child
nutrition program regulations, including
terminology changes, from the 2023 proposed
rule. For the ‘‘legumes (beans and peas)’’
vegetable subgroup, this rule changes the
name to ‘‘beans, peas, and lentils’’ to reflect
the Dietary Guidelines, 2020–2025. As noted
in the rule preamble, the rule also finalizes
a variety of technical corrections, including
correcting cross-references, updating
definitions, removing outdated requirements,
and revisions to the meal pattern tables to
make them more user-friendly.
32113
Summary
As noted above, this rule was developed in
order to align school nutrition requirements
more closely with the goals of the Dietary
Guidelines for Americans, 2020–2025 and to
support the continued transition to long-term
requirements after the pandemic and
implementation of the transitional standards
rule. Most of the impacts associated with this
rule are in the form of shifts in purchasing
patterns and increased labor costs. Costs in
this section are uncertain (and thus estimates
should be considered as somewhat
imprecise) but reflect the potential value of
the changes in this rule that States and local
entities may need to account for. There are
no estimated changes in Federal costs due to
the changes in this final rule.
TABLE 20: ESTIMATED ANNUAL COSTS IN MOVING FROM TRANSITIONAL STANDARDS RULE TO THIS RULE BEGINNING
BY SCHOOL YEAR (MILLIONS), ADJUSTED FOR ANNUAL INFLATION 114•115
$0.008
$0.023
$0.017
$0.045
$0.040
$0.041
The estimated cost to schools averages
$206 million annually over eight school
years, or $0.03 per lunch and breakfast in
food and labor costs (table 20). The majority
of costs associated with this rule are a result
of purchasing different products with less
sodium and the additional labor needed to
increase scratch cooking, update menus, and
introduce new recipes to reduce sodium. The
estimated cost of shifting to the product
specific added sugars limits and substituting
vegetables for fruits is based on switching to
products already available on the market;
costs to schools may vary if manufacturers
alter products or create new products to meet
the added sugars regulations. However, we
estimate cost savings to update the
requirements for afterschool snacks related to
food prices to meet the breakfast cereal and
yogurt product-based added sugars limits.
The costs associated with Buy American are
due to additional food costs and additional
burden hours for documentation. All
estimates from this rule, intending to
implement achievable requirements in
alignment with the goals of the Dietary
Guidelines, are supported by a variety of
analyses of the most recently available data.
113 Bobronnikov, E. et al. (2021). Farm to School
Grantee Report. Prepared by Abt Associates,
Contract No. AG–3198–B–16–0015. Alexandria, VA:
U.S. Department of Agriculture, Food and Nutrition
Service, Office of Policy Support, Project Officer:
Ashley Chaifetz.
114 Values reflect annual costs from sections
above with added three percent annual inflation.
Costs are also shown by school year in this table.
This varies from table 1 which shows fiscal years
and does not include expected annual inflation
through the duration of the final rule.
115 Due to rounding, numbers may not add up to
rounded sum in ‘total’ column exactly.
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VI. Uncertainties/Limitations
Many assumptions were made in this
analysis of this rule’s impacts, and the
resulting uncertainties and limitations must
be acknowledged. Some general limitations
are noted first, followed by limitations
specific to sections and then a discussion of
the uncertainty of school meal program
participation levels going forward. Some of
these uncertainties and limitations result
from this rule being written directly after
extended use of COVID–19 meal pattern
waivers, in which assumptions must be made
about future participation in school meal
programs, and others result from unknown
future food and labor price trajectories.
General
Due to the pandemic, the next edition of
the School Nutrition Meal Cost Study (II) was
delayed, thus leaving the SY 2014–2015 data
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$0.043
$0.045
NA
$0.033
from the first version of that study as the
most recent data that could be used for this
analysis. Product availability and costs have
likely changed from SY 2014–2015 and will
continue to change through the
implementation date of this rule (SY 2024–
2025, although required changes will be
phased in over time). Because the transitional
standards rule went into effect recently, it is
unclear how well schools will adapt to the
updated requirements in this rule. A lack of
recent data on school staffing levels and
impacts of the pandemic in all aspects of
school foodservice make it challenging to
estimate changes in staffing cost, especially
as it affects changes in the need for scratch
cooking and professional standards final
regulations.
USDA acknowledges that the data used to
evaluate cost, although the most recent
available data, is relatively old. One remedy
has been to adjust for inflation from SY
2014–2015 to the years of implementation
prescribed in this rule. However, as noted
throughout the analysis, it is possible that
116 Annual average over 8 school years of rule
implementation.
117 Only local costs (not State costs) are adjusted
for inflation because they are based on a factor of
food-costs.
118 Only food costs (not record keeping) are
adjusted for inflation.
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TOTAL PER MEAL
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Federal Register / Vol. 89, No. 81 / Thursday, April 25, 2024 / Rules and Regulations
changes in product formulation, availability,
and cost have occurred in the years since
these data were collected. Among the more
significant changes in this rule are the
requirements to reduce levels of sodium and
added sugars in school meals. USDA
conducted additional analysis of these two
changes in order to more fully account for
possible cost impacts. A sensitivity analysis
shows a range of possible cost impacts from
half the estimated cost impact to double the
cost impact of the added sugars and sodium
provisions (table 21). It is possible that the
impacts could be higher or lower in the
future, but this sensitivity analysis shows a
range in costs to illustrate the potential
magnitude of change. If the costs of food with
lower sodium and lower added sugars has
doubled since SY 2014–2015, then the costs
of implementing this rule would be
considerably higher. However, if the market
has changed already due to the CACFP total
sugar limits, public desire for healthier
packaged food options, and the FDA
voluntary sodium reduction goals, then it is
possible that the cost differential has already
decreased.
TABLE 21: SENSITIVITY ANALYSIS- ESTIMATED 7-YEAR COST DIFFERENTIALS OF REDUCING SODIUM AND ADDED SUGARS IN SCHOOL
MEALS MILLIONS , ADJUSTED FOR ANNUAL INFLATION 119
119 Product-specific added sugars limits and
weekly added sugars and sodium limits included in
this final rule will not take effect until SY 2025–
2026 and SY 2027–2028, respectively.
120 Results of USDA’s FNS-Administered SFA
Survey II on Supply Chain Disruption and Student
Participation | Food and Nutrition Service.
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component scores for added sugars and
sodium only reflect one aspect of the diet,
not a complete diet. HEI scores were
originally designed to measure a full day of
intake, not necessarily to evaluate one or two
meals a day. Another limitation regarding
HEI scores is that the calculation does not
exactly align with the recommendations in
the Dietary Guidelines but is a tool to
evaluate nutrient density of foods consumed
throughout an entire day. For instance, a
maximum score for the sodium component is
achieved if sodium content is ≤1.1 grams of
sodium per 1,000 kilocalories (HEI–2010 and
HEI–2015) and a maximum score for the
added sugars component is achieved if added
sugars are at ≤6.5 percent of total energy
(HEI–2015).121 The Dietary Guidelines for
Americans, 2020–2025 sodium
recommendations are based on the sodium
DRIs and the added sugar recommendations
are more liberal at 10 percent when
considering the entire population, including
adults. While these are limitations of using
the HEI score and component scores, HEI is
still a valuable tool to evaluate meals in a
standardized way that allows for comparison
and measuring improvement over time.
Decreasing sodium and added sugars menu
content may inadvertently increase other
nutrients such as fat and protein. It is
uncertain what the effect of these changes
across this final rule will have on average
across school food authorities since there are
121 https://epi.grants.cancer.gov/hei/
comparing.html.
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so many combinations of food groups and
permutations of menu changes. For example,
a decrease in added sugars content alone
could inadvertently increase sodium content
through usage of more meat/meat alternate
products on menus. School nutrition
program directors will have to be aware of
possible tradeoffs when making menu
changes.
The adaptability of children’s taste
preferences is at the root of the way the final
rule impacts for sodium have been measured.
Typical benefit-cost analysis of a policy
intervention of the type in this rulemaking
often uses a willingness-to-pay (WTP)
measure.122 WTP reflects underlying
preferences—in this case, preferences for
122 Either a direct WTP estimate could be
developed or a multistep estimation could quantify
health and longevity effects with lost eatingexperience utility subsequently being subtracted.
For example, in the context of sugar-sweetened
beverages (SSB), Kalamov and Runkel (2021), citing
Allcott et al.’s (2019) estimates, suggest that
internalities (representing the harm consumers of
relatively unhealthy foods suboptimally impose on
their future selves) could be 30- to 50-percent of
gross health impacts; it is the 30- to 50-percent that
would appropriately be retained in an analysis of
the intrapersonal benefits of a policy that reduces
consumption of SSB or foods with similar
characteristics. Kalamov, Z. Y. and M. Runkel,
Taxation of unhealthy food consumption and the
intensive versus extensive margin of obesity.
International Tax and Public Finance, 2021: p. 1–
27. Allcott, H., B. B. Lockwood, and D. Taubinsky,
Regressive sin taxes, with an application to the
optimal soda tax. The Quarterly Journal of
Economics, 2019. 134(3): p. 1557–1626.
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Another area of uncertainty is about the
types of products available from
manufacturers, especially those products that
are created for school foodservice. Certain
products will be eliminated, others will be
reformulated, and the dimensions of such
product changes are difficult to predict.
Product lines that have been created
specifically for schools may become more
common with this rulemaking. School food
authorities have also faced supply chain
delays in recent years that may continue.
About 92 percent of school food authorities
reported experiencing challenges due to
supply chain disruptions in SY 2021–2022,
including product availability, orders
arriving with missing or substituted items,
and labor shortages.120 In addition, it may
take longer to reformulate certain product
lines than anticipated. Food manufacturers
play an integral role in school food service
operations and in the ability for school food
authority menus to meet regulations,
especially when it comes to added sugars,
milk, whole grains, and sodium.
For this analysis, HEI scores were used to
measure the alignment of school menus with
recommendations from the Dietary
Guidelines. The HEI measure has a few
limitations as used for this analysis. HEI
Federal Register / Vol. 89, No. 81 / Thursday, April 25, 2024 / Rules and Regulations
food characteristics, including both health
consequences and short-term eating
experience—and if preferences are unstable,
then key inputs to the analysis are not welldefined. Indeed, shifting taste preferences
(when they are malleable during childhood)
away from foods with high levels of sodium
is a key expected outcome of this final rule.
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Health Benefits
The financial impacts of changes that affect
our health can be challenging to quantify,
especially for a younger, student population.
A 2023 study used NHANES data to evaluate
the health and economic effects of school
meal requirements consistent with the
Dietary Guidelines for Americans, 2020–
2025—namely added sugars, sodium, and
whole grains. The study estimated that, if
only 25 percent of school children’s dietary
changes were maintained into adulthood,
that would prevent 7,760 adult deaths and
save $14 billion in medical costs annually.123
Such estimates are model projections and do
not prove the extent of health-related benefits
over time. While a variety of studies have
shown that habits developed in childhood
can track into adulthood,124 125 it is unclear
what proportion of individuals hold to this
trend and the related level of reduced
chronic health conditions in adults
consuming healthier meals during childhood
and adolescence.
As detailed above in the ‘Impacts’ section,
reducing intake of added sugars can result in
reductions in T2D, CVD, and chronic kidney
disease. Consumption of meals with low-fat
dairy (including low-fat milk) and whole
grains was associated with lower blood
pressure and improved blood lipid levels.
Throughout the lifespan, consumption of
whole grains has been shown to reduce the
risk of CVD, T2D, and some types of cancer.
Reducing sodium intake has been shown to
reduce blood pressure in children of all ages,
and in turn to reduce CVD incidence.126
Despite the challenges of quantifying the
costs or savings resulting from improved
health outcomes in children, there are some
available studies that quantify these findings
in adults for major health outcomes. For
instance, annual medical costs for
individuals with high blood pressure are up
123 Wang L, Cohen J, Maroney M, et al. Evaluation
of health and economic effects of United States
school meal standards consistent with the 2020–
2025 dietary guidelines for Americans. The
American Journal of Clinical Nutrition. 2023. DOI:
https://doi.org/10.1016/j.ajcnut.2023.05.031.
124 Lioret S, Campbell KJ, McNaughton SA, et al.
Lifestyle Patterns Begin in Early Childhood, Persist
and Are Socioeconomically Patterned, Confirming
the Importance of Early Life Interventions.
Nutrients. 2020;12(3):724. Published 2020 Mar 9.
doi:10.3390/nu12030724.
125 Movassagh EZ, Baxter-Jones ADG,
Kontulainen S, Whiting SJ, Vatanparast H. Tracking
Dietary Patterns over 20 Years from Childhood
through Adolescence into Young Adulthood: The
Saskatchewan Pediatric Bone Mineral Accrual
Study. Nutrients. 2017;9(9):990. Published 2017
Sep 8. doi:10.3390/nu9090990.
126 More detailed explanations of health effects of
the most impactful provisions are in the ‘Impacts’
section above.
127 Wang G, Zhou X, Zhuo X, Zhang P. Annual
total medical expenditures associated with
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to $2,500 higher than costs for people
without high blood pressure,127 128 resulting
in a $79 billion total annual medical cost
associated with high blood pressure in the
U.S.129 From 1996 to 2016, there was an
increase of over $100 billion in spending on
adult CVD, to a total of $320 billion spent in
2016 in the U.S., reported in 2016 dollars.130
This indicates that a reduction in CVD
overall could result in significant savings.
One model from 2017 showed ‘‘clear and
significant benefits for interventions that
reduce consumption of added sugars.’’ The
study found that reducing added sugar
consumption by 20 percent would mean
lower annual direct medical costs for U.S.
adults by more than $10 billion. While the
study only modelled the population with an
age over 20, it noted that including
interventions for children, especially with
T2D, would lead to additional benefits.131 A
scientific statement from the American Heart
Association noted that CVD ‘‘is the leading
cause of death in North Americans and
generates tremendous personal and economic
burden globally.’’ 132 The most expensive
chronic condition in the U.S. is diabetes,
with a $327 billion annual cost ($237 billion
of which are medical costs).133 The cost and
benefit estimates from these studies may be
subject to a variety of limitations depending
on study design and available data; however,
these estimates help to provide insight into
potential savings associated with consuming
a healthy diet over the lifespan. While there
is some cost associated with improving the
dietary intake of school-aged-children
through school meals and other child
nutrition programs, the potential savings in
adulthood through reduced medical costs
and increased productivity could be
substantial, especially when considering
blood pressure, CVD, and diabetes.
32115
unclear, as is whether it will be a slow
transition for manufacturers.134 It is possible
that some school food authorities will need
to serve unflavored milk varieties only,
temporarily, if the availability of flavored
milks with a lower level of added sugars is
limited. However, a recent commitment from
the milk industry states that, beginning in SY
2025–2026, 37 school milk processors
representing more than 90 percent of the
school milk volume in the United States
commit to provide school milk options with
no more than 10 grams of added sugar per
8 fluid ounce serving. This would improve
the market availability of flavored milks that
meet the added sugars limit finalized in this
rule in time for implementation in SY 2025–
2026.135
Milk
Added Sugars
For milk products, the market availability
of flavored milks that meet the added sugars
limit of ≤10 mg of added sugars per 8 fluid
ounces is uncertain. While a limited search
completed in 2022 by USDA showed that
some manufacturers are already producing
flavored milks that meet the added sugars
limit, the full availability across the nation is
With regards to milk, there is some
uncertainty about the differences in price by
milk type. When comparing the average price
per eight fluid ounces of milk in SY 2009–
2010 data to the average price in SY 2014–
2015 data, both show small differences in
prices by milk type, although those
differences are not consistent between the
two time periods. For instance, in the SY
2009–2010 data, flavored, low-fat milk cost
$0.02 more per carton than other milk types
(flavored, fat-free milk, unflavored, low-fat
milk, and unflavored, fat-free milk). In the SY
2014–2015 data, however, flavored, low-fat
milk cost $0.01 more than flavored, fat-free
milk, and flavored, fat-free milk cost $0.01
more than unflavored, fat-free milk. More
data regarding these cost differences are in
table 22.
USDA acknowledges the possibility that
this rule and the transitional standards rule
may cause, or have already caused, milk
product prices to change and that school
milk prices have been similar by fat content
and flavor status in the past. A comparison
of the potential impacts of the added sugars
limits for milk using milk prices in the two
different data collection time points (SY
2009–2010 and SY 2014–2015) is included
below.
hypertension by diabetes status in US adults. Am
J Prev Med. 2017;53(6 suppl 2):S182–S189.
128 Kirkland EB, Heincelman M, Bishu KG, et al.
Trends in healthcare expenditures among US adults
with hypertension: national estimates, 2003–2014.
J Am Heart Assoc. 2018;7(11).pii: e008731.
129 Dieleman JL, Cao J, Chapin A, et al. US Health
Care Spending by Payer and Health Condition,
1996–2016. 2020;323(9):863–884. doi:10.1001/
jama.2020.0734.
130 Birger M, Kaldjian AS, Roth GA, Moran AE,
Dieleman JL, Bellows BK. Spending on
Cardiovascular Disease and Cardiovascular Risk
Factors in the United States: 1996 to 2016.
Circulation. 2021;144(4):271–282. doi:10.1161/
CIRCULATIONAHA.120.053216.
131 Vreman RA, Goodell AJ, Rodriguez LA, et al.
Health and economic benefits of reducing sugar
intake in the USA, including effects via nonalcoholic fatty liver disease: a microsimulation
model. BMJ Open. 2017 Aug 3;7(8):e013543. doi:
10.1136/bmjopen-2016–013543. PMID: 28775179;
PMCID: PMC5577881.
132 Vos MB, Kaar JL, Welsh JA, American Heart
Association, et al. Added Sugars and
Cardiovascular Disease Risk in Children: A
Scientific Statement From the American Heart
Association. Circulation. 2017 May
9;135(19):e1017-e1034. doi: 10.1161/
CIR.0000000000000439. Epub 2016 Aug 22. PMID:
27550974; PMCID: PMC5365373.
133 American Diabetes Association. Economic
costs of diabetes in the US in 2017. Diabetes Care.
2018;41:917–928.
134 The search was conducted in 2022, however
some product catalogs were older. It was found that
at least four manufacturers had at least one flavored
milk product with under 10 grams of added sugars
per serving and in fact, three of them had products
with six grams of added sugars per serving. A total
of 10 flavored milk products from four companies
were below the 10-gram added sugars limit. The
catalogs used for data collection generally showed
that there were lower sugar and higher sugar
versions of flavored milk available.
135 The Healthy School Milk Commitment—IDFA.
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TABLE 22. COMPARISON OF COST OF MILK PER EIGHT FLUID OUNCES BY MILK TYPE DURING TWO
DATA COLLECTIONS
As noted above, on average, low-fat,
flavored milk cost $0.01 more than low-fat,
unflavored milk per carton (8 fluid ounces)
in the SY 2014–2015 data, and fat-free,
flavored milk cost $0.01 less than fat-free,
unflavored milk per carton. If across all NSLP
and SBP menus, all fat-free, flavored milk
was replaced with low-fat, flavored milk, it
would cost about $85 million more a year
(using updated data from SY 2014–2015).
Any change to low-fat, flavored milk from
fat-free, flavored milk must be made within
available resources and calorie and fat limits,
and upon implementation, added sugars
limits, so it is unlikely that all school food
authorities will make this change for all
flavored milk offerings. USDA estimates this
to be about $9 million more a year in the
value spent on milk (table 23). By using the
updated milk cost data, the annual cost of
purchasing low fat flavored milk is about 30
percent less than the cost using the SY 2009–
2010 data, adjusted for inflation (table 23).
TABLE 23: ESTIMATED IMPACT OF PURCHASING LOW-FAT, FLAVORED MILK (MILLIONS) WITH UPDATED DATA
estimate a quarter of all schools will spend
an average of $3,850 on equipment costs, for
a total of about $100 million. As an upper
bound, we assume schools may need more
equipment to adapt to the reduced sodium
limits, spending an average of $7,700 spread
over the two school years prior to the SY
2027–2028 implementation year. This would
be equivalent to about $200 million across
two school years (SY 2025–2026 and SY
2026–2027). These estimates, adjusted for
inflation, are shown below in table 24 with
the low end estimate accounting for $30
million in equipment grants that are available
annually. The actual costs for equipment may
be higher as the exact needs of schools for
equipment and remodeling to increase
scratch cooking are unknown. Examples of
equipment needed by schools to improve the
appearance, safety, and healthfulness of food
include ovens, skillets, broilers, refrigerators
or freezers, serving equipment, steam
equipment, and food preparation
equipment.140 It is also possible that schools
may sustain higher costs as a result of
purchasing more pre-made meals and foods
through food service companies if they do
not have the necessary equipment to lower
sodium content through scratch cooking or
menu reformulation.
136 https://fns-prod.azureedge.us/sites/default/
files/resource-files/SNMCS-Volume2.pdf.
137 School Food Purchase Study III.
138 Bobronnikov, E. et al. (2021). Farm to School
Grantee Report. Prepared by Abt Associates,
Contract No. AG–3198–B–16–0015. Alexandria, VA:
U.S. Department of Agriculture, Food and Nutrition
Service, Office of Policy Support, Project Officer:
Ashley Chaifetz.
139 Federal Register: Final Rule: Nutrition
Standards in the National School Lunch and School
Breakfast Programs.
140 U.S. Department of Agriculture, Food and
Nutrition Service, Office of Policy Support, Child
Nutrition Program Operations Study (CN–OPS–II):
SY 2015–16 by Jim Murdoch and Charlotte Cabili.
Project Officer: Holly Figueroa. Alexandria, VA:
December 2019.
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Due to the age of the available data, it is
unknown if schools made substantial
changes in the proportion of whole grain-rich
items served during the time from SY 2014–
2015 to SY 2019–2020. In order to update the
RIA with SY 2014–2015 data, the analysis
also incorporated whole grain-rich based
combination entre´es because they contribute
importantly to daily intake in school meals,
according to the SNMCS report.136 However,
the cost of combination entrees also includes
the cost of other food groups, so the cost
comparison was based on a cost per grain
portion of the combination entre´es. The
values are still comparable because the same
methodology was used for whole grain-rich
items and the non-whole grain-rich items
overall, but it is not possible to compare to
the transitional standards rule RIA
methodology which included bulk cost data
from another source.137
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Sodium
A limitation in the cost analysis of sodium
is that the sodium limit is meant to be met
by product reformulation, changing food
menu items, and scratch cooking, so the
assumptions about the cost distribution, 45
percent food, 45 percent labor, and 10
percent other, might not be accurate or
complete. As a result, the costs of the sodium
limits were not adjusted to account for
additional costs of equipment as part of an
estimate for this ‘Uncertainties/Limitations’
section. This is a limitation because the exact
needs of each school food authority to equip
kitchens for scratch cooking and menu
changes are not known.
This additional analysis provides a high
and low estimate of the costs to schools for
equipment that would allow them to reach
the sodium limits established in this rule.
About half of schools make under 50 percent
of their recipes from scratch according to the
Farm to School Census data.138 In the 2012
rule, estimates based on public comments
regarding the sodium targets were included
in the Uncertainties discussion to calculate
potential equipment costs; around $5,000 per
school for approximately half of schools.139
Adjusting for inflation, this would be
equivalent to $7,700 beginning in SY 2025–
2026 for about 50,000 schools, which was the
basis of the equipment cost estimate used for
the proposed sodium limits of several 10
percent reductions for breakfast and lunch.
However, since the final sodium limit
implements only one 10–15 percent sodium
reduction, we assume fewer equipment costs
than the proposed rule. On the low end, we
Whole Grains
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32117
TABLE 24: ESTIMATED COSTS OF EQUIPMENT FOR IMPLEMENTING NEW
SODIUM REDUCTION PLAN
Participation Impacts
As noted earlier, in the Key Assumptions
section, participation costs associated with
this rule are based on a level of service in
school lunch and breakfast programs that
mirrors the 2023 level of service. There are
multiple contributing factors that may lead to
an increased or decreased level of school
meal participation in these years after the
pandemic. Due to the uncertainty of the
direction of student participation, a variety of
possibilities are detailed here and the change
in cost is simulated below (table 25). Nearly
three-quarters of school food service directors
reported that gaining student acceptance of
the meal pattern standards, particularly
whole grains, was moderately to extremely
challenging with respect to maintaining
student participation.143 If there is a similar
downward trend in student participation as
a result of sodium and added sugar
standards, there would be a corresponding
reduction in food costs and potentially a
reduction in labor hours. USDA is not aware
of any evidence to support that there is a
correlation between updates to school meal
patterns and student participation, however.
If student participation increases, there
would be an expected increase in food and
labor costs, but potentially a reduction of cost
due to economies of scale as the operation
scale increases. Relatedly, more states and
schools are offering Healthy School Meals for
All due to the realized benefits of free school
meals during the COVID pandemic. [This
could be through State initiatives 144 or
increased use of Community Eligibility
Provision (CEP).] Research has shown that
schools offering all meals at no charge
through CEP experience higher student
participation levels and increases in Federal
revenues.145 These revenue increases may
offset (from the local perspective, though not
from the nationwide perspective) some of the
estimated costs associated with this rule.
TABLE 25: PROJECTED COSTS BY STUDENT PARTICIPATION CHANGE (MILLIONS)
Other factors unrelated to meal pattern
requirements may also impact student
participation. In 2014, a sample of principals
and foodservice managers in elementary
schools indicated that 70 percent of students
‘‘generally seem to like the new school
lunch’’ and 78 percent said participation in
school lunch was the same or more than the
previous year.147 However, about 25 percent
of those surveyed still disagreed that students
seemed to like lunches offered under the new
requirements. CEP became available to all
school districts nationwide in SY 2014–2015,
and rates of SBP and NSLP participation
increased in SY 2016–2017 in school districts
that had implemented CEP.148 As
participation in CEP continues to expand it
is possible there may be some offset of any
downward trend in school lunch
participation though USDA has no evidence
to support that this is likely to occur. While
student participation may be variable
following implementation of this rule, it is
known that students who participate in the
school meal programs consume more whole
grains, fruits, vegetables, and milk than nonparticipants, leading to a better quality of
daily diet overall.149
It is assumed that levels of SBP and NSLP
participation will continue to increase to prepandemic rates, but it is difficult to know
how long the supply chain disruptions and
141 Changes to sodium limits as a result of this
final rule will not take effect until SY 2027–2028.
142 Includes the $30 million offset of annually
available equipment grants.
143 U.S. Department of Agriculture, Food and
Nutrition Service, Office of Policy Support, Child
Nutrition Program Operations Study (CN–OPS–II):
SY 2017–18. Beyler, Nick, Jim Murdoch, and
Charlotte Cabili. Project Officer: Holly Figueroa.
Alexandria, VA: November 2022. https://fnsprod.azureedge.us/sites/default/files/resource-files/
CNOPS-II-SY2017-18.pdf.
144 https://www.cde.ca.gov/ls/nu/sn/
cauniversalmeals.asp.
145 https://fns-prod.azureedge.us/sites/default/
files/resource-files/CEPSY2016-2017.pdf.
146 USDA—Food and Nutrition Service, National
Data Bank—Publicly available data.
147 Turner, Lindsey, and Frank Chaloupka (2014).
‘‘Perceived Reactions of Elementary School
Students to Changes in School Lunches after
Implementation of the United States Department of
Agriculture’s New Meals Standards: Minimal
Backlash, but Rural and Socioeconomic Disparities
Exist,’’ Childhood Obesity 10(4):1–8.
148 https://fns-prod.azureedge.us/sites/default/
files/resource-files/CEPSY2016-2017.pdf.
149 ox MK, Gearan E, Cabili C, et al. School
Nutrition and Meal Cost Study, Final Report
Volume 4: Student Participation, Satisfaction, Plate
Waste, and Dietary Intakes. U.S. Department of
Agriculture, Food and Nutrition Service, Office of
Policy Support; 2019. https://www.fns.usda.gov/
school-nutrition-and-meal-cost-study.
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Improving meal pattern requirements may
have corresponding impacts on student
participation. After publication of the
updated meal patterns in the 2012 final rule,
which were implemented in SY 2012–2013
and beyond, there were variable changes to
school meal program participation. Total
breakfasts served increased steadily between
fiscal year 2012 and fiscal year 2016. School
lunches served decreased by approximately
three percent between fiscal year 2012 and
fiscal year 2016. However, similar breakfast
and lunch trends existed prior to fiscal year
2012 146 and the exact relationship between
the new meal patterns and participation
changes is unclear based on these data.
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staffing challenges will continue. A variety of
Executive orders and plans within the
Federal Government have been employed to
track and address supply chain disruptions,
as well as a task force with a focus on supply
chain issues.150 The U.S. Department of
Transportation reported improvements in
supply chain disruption in early 2022, but
there are still existing stressors in the U.S.
supply chain.151 152 Unemployment levels
have returned to pre-pandemic rates as of
mid-2022, and gains are continuing in the
hospitality sector, so it is likely staffing
challenges in school food service will
continue to improve.153 These disruptions in
service have created additional burden for
school food authorities and it is possible this
burden may hold on for a few years,
potentially affecting student participation in
school meal programs. USDA recognizes that
schools may have been offering meals that
were higher in sodium under the COVID–19
meal pattern waivers. The sodium limits
finalized in this rule, which align with
Sodium Target 2 from the 2012 final rule,
will be gradually implemented. This gradual
approach, which requires implementation in
SY 2027–2028, is expected to ease
implementation for schools as they adjust to
the new limits. There is potential for a
decrease in participation if students find
meals less desirable because of lower added
sugars and sodium levels, though USDA has
no evidence to support that this has occurred
during prior meal pattern updates. However,
research indicates that a 10 percent sodium
reduction in individual food products does
not substantially impact consumer
approval.154 If there is a five percent decrease
in participation of school meal programs,
then the readily quantifiable annual cost of
this rule would be $195 million, or $1.6
billion over the eight years (table 25).155
Other possible levels of decrease in
participation are also provided.
Many students who had never participated
in the NSLP and SBP prior to the pandemic
but who did participate under USDA’s
COVID–19 nationwide waivers may have
found a level of convenience associated with
150 https://crsreports.congress.gov/product/pdf/
IN/IN11927.
151 https://www.transportation.gov/briefing-room/
usdot-supply-chain-tracker-shows-progress-supplychains-remain-stressed.
152 Results of USDA’s Food and Nutrition ServiceAdministered School Food Authority Survey II on
Supply Chain Disruption and Student Participation
(azureedge.us).
153 https://www.bls.gov/news.release/pdf/
empsit.pdf.
154 Cobb LK, Appel LJ, Anderson CA. Strategies
to reduce dietary sodium intake. Curr Treat Options
Cardiovasc Med. 2012;14(4):425–434. doi:10.1007/
s11936–012–0182–9.
155 If the decrease in participation is caused by
provisions of this final rulemaking, then there
would be other effects—for example, incremental
health consequences of revised eating patterns, or
the transition cost to parents and guardians as they
make other eating arrangements for their children—
that would also be attributable to the rule. By
contrast, if participation decreases due to unrelated
trends, then the quantified cost estimates would be
as reported here but the (unquantified)
accompanying effects would not be attributable to
this final rule.
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participating in the school meals programs
instead of eating breakfast at home or
bringing a lunch from home. Parents and
guardians may also find that school meals
with reduced sodium and added sugars are
a healthier option than meals that were
available at school previously. If there is a
five percent increase in participation of
school meal programs, then the quantified
annual cost of this rule would be $216
million, or $1.7 billion over the eight years
(table 25).156 Costs associated with other
possible levels of potential increase in
participation are provided. It is possible that
an increase in revenue resulting from greater
participation in school meal programs would
offset some of the costs that occur from
implementation of this rule.
VII. Benefits of the Rule and Other
Discussion
Health Benefits
The goal of this rule is to more closely
align school meals with the goals of the
Dietary Guidelines for Americans, 2020–
2025. The Dietary Guidelines are meant to
promote health, prevent and reduce risk of
chronic disease, and meet nutrient needs.157
School meals are an important source of
nutrition for school age children. Pandemic
disruption to school operations demonstrated
the continued importance of child nutrition
programs including the NSLP and SBP.
Making the changes outlined in this rule
can lead to improved health outcomes in the
long-term. Lifestyle habits including dietary
habits are established in childhood and
research has shown that they may carry
through into adulthood.158 159 The two most
impactful changes in this rule are reductions
in added sugars and sodium content of
school meals. Reducing sodium and added
sugars intake is associated with a variety of
potential health benefits that are detailed
above in the sodium and added sugars
‘Impacts’ sections. Reduction in sodium
intake reduces blood pressure which in turn
can reduce CVD risk and CVD events. Added
sugars consumption is associated with a
variety of potential chronic health
conditions, including CVD and T2D, and risk
156 If the increase in participation is caused by
provisions of the final rule, then there would be
other effects—for example, incremental health
consequences of revised eating patterns—that
would also be attributable to the provision. By
contrast, if participation increases due to unrelated
trends, then the quantified cost estimates would be
as reported here but the unquantified
accompanying effects would not be attributable to
the final rule.
157 U.S. Department of Agriculture and U.S.
Department of Health and Human Services. Dietary
Guidelines for Americans, 2020–2025. 9th Edition.
December 2020. Available at DietaryGuidelines.gov.
158 Grummer-Strawn LM, Li R, Perrine CG,
Scanlon KS, Fein SB. Infant feeding and long-term
outcomes: results from the year 6 follow-up of
children in the Infant Feeding Practices Study II.
Pediatrics. 2014;134 Suppl 1(Suppl 1):S1–S3.
doi:10.1542/peds.2014–0646B.
159 Lioret S, Campbell KJ, McNaughton SA, et al.
Lifestyle Patterns Begin in Early Childhood, Persist
and Are Socioeconomically Patterned, Confirming
the Importance of Early Life Interventions.
Nutrients. 2020;12(3):724. Published 2020 Mar 9.
doi:10.3390/nu12030724.
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factors for these chronic diseases. While this
rule maintains the existing whole grain-rich
requirements for school meals, it is of note
that increased whole grain consumption is
associated with an improved overall dietary
pattern.160 On average, in SY 2014–2015, 70
percent of the weekly menus offered at least
80 percent of the grain items as whole grainrich for both breakfast and lunch.161 Recent
research evaluating the health benefits of
aligning the school meal nutrition
requirements with the Dietary Guidelines for
Americans, 2020–2025 found an association
of 7,760 fewer annual deaths due to CVD and
cancer and save $13.8 billion in healthcarerelated costs annually if 25 percent of school
children’s dietary changes were sustained
into adulthood.162 Systematic review
evidence also exists that shows intake in
children of healthier dietary patterns
including ‘‘higher intakes of vegetables,
fruits, whole grains, fish, low-fat dairy,
legumes, and lower intake of sugarsweetened beverages, other sweets, and
processed meat,’’ are associated with lower
blood pressure and improved blood lipid
levels later in life.163 164 These dietary
patterns associated with improved health
outcomes have higher intake of whole grains
and lower intake of both foods high in
sodium and high in added sugars.
Improvements in school meals finalized in
this rule, with a focus on sodium and added
sugars reduction, will lead to healthier
dietary intake and improved health outcomes
over time.
This rule also includes sections on
traditional Indigenous foods that may have
160 Albertson AM, Reicks M, Joshi N, Gugger CK.
Whole grain consumption trends and associations
with body weight measures in the United States:
results from the cross sectional National Health and
Nutrition Examination Survey 2001–2012. Nutr J.
2016;15:8. Published 2016 Jan 22. doi:10.1186/
s12937–016–0126–4.
161 Based on an internal USDA analysis using
data from: U.S. Department of Agriculture, Food
and Nutrition Service, School Nutrition and Meal
Cost Study Final Report Volume 2: Nutritional
Characteristics of School Meals, by Elizabeth
Gearan et.al. Project Officer, John Endahl,
Alexandria, VA: April 2019. Available online at:
www.fns.usda.gov/research-and-analysis.
162 Wang L, Cohen J, Maroney M, et al. Evaluation
of health and economic effects of United States
school meal standards consistent with the 2020–
2025 dietary guidelines for Americans. The
American Journal of Clinical Nutrition. 2023. DOI:
https://doi.org/10.1016/j.ajcnut.2023.05.031.
163 2020 Dietary Guidelines Advisory Committee
and Nutrition Evidence Systematic Review Team.
Dietary Patterns and Risk of Cardiovascular Disease:
A Systematic Review. 2020 Dietary Guidelines
Advisory Committee Project. Alexandria, VA: U.S.
Department of Agriculture, Food and Nutrition
Service, Center for Nutrition Policy and Promotion,
July 2020. Available at: https://nesr.usda.gov/2020dietary-guidelines-advisory-committee-systematicreviews.
164 2020 Dietary Guidelines Advisory Committee
and Nutrition Evidence Systematic Review Team.
Dietary Patterns and Growth, Size, Body
Composition, and/or Risk of Overweight or Obesity:
A Systematic Review. 2020 Dietary Guidelines
Advisory Committee Project. Alexandria, VA: U.S.
Department of Agriculture, Food and Nutrition
Service, Center for Nutrition Policy and Promotion,
July 2020. Available at: https://nesr.usda.gov/2020dietary-guidelines-advisory-committee-systematicreviews.
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some potential health benefits for American
Indian and Alaska Native children. USDA
acknowledges that for decades, the United
States government actively sought to
eliminate traditional American Indian and
Alaska Native ways of life—for example, by
forcing Indigenous families to send their
children to boarding schools. This separated
Indigenous children from their families and
heritage, and disrupted access to traditional
foods, altering Indigenous children’s
relationship to food. This disruption effected
food access, food choice, and overall health.
The Traditional Foods Project (TFP) and
associated research have shown that there
may be benefits to integrating culture and
history through locally designed
interventions framed by food sovereignty
among American Indian and Alaska Native
communities to help prevent chronic disease,
especially type 2 diabetes.165 166
Food and Nutrition Security
Prior to and during the pandemic, school
meals played an important role in serving
healthy meals to millions of children and
increasing food security by serving free or
reduced price meals to eligible students.
Food and nutrition security is defined as
‘‘consistent and equitable access to healthy,
safe, affordable foods essential to optimal
health and well-being’’ by the USDA.167 In
2020, about fifteen percent of households
with children were food insecure compared
to about fourteen percent in 2019.168 This
means that millions of children are affected
by food insecurity in the U.S. Free and
reduced-price meals in the SBP and NSLP are
served to students from households with
lower income levels. In 2023, about 80
percent of meals served in the SBP and about
71 percent of meals served in the NSLP were
free or reduced-price meals.169 This rule
targets the diet quality of meals served
through child nutrition programs, and we
estimate this rule to benefit the health of
program participants. Providing nutrientdense meals and snacks is especially
valuable for children that may not always
have access to nutritious foods at home. In
2021, USDA found that around 55 percent of
food-insecure households participated in one
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165 DeBruyn
L, Fullerton L, Satterfield D, Frank
M. Integrating Culture and History to Promote
Health and Help Prevent Type 2 Diabetes in
American Indian/Alaska Native Communities:
Traditional Foods Have Become a Way to Talk
About Health. Prev Chronic Dis 2020;17:190213.
DOI: https://dx.doi.org/10.5888/
pcd17.190213external icon.
166 Satterfield D, DeBruyn L, Santos M, Alonso L,
Frank M. Health promotion and diabetes prevention
in American Indian and Alaska Native
communities—Traditional Foods Project, 2008–
2014. CDC Morbidity Mortality Weekly Report.
2016;65(S1):4–10. https://www.cdc.gov/mmwr/
volumes/65/su/su6501a3.htm.
167 https://www.usda.gov/nutritionsecurity#:∼:text=At%20a%20minimum%2C%
20food%20security,%2C%20or%20other%
20coping%20strategies).
168 https://www.ers.usda.gov/amber-waves/2022/
february/food-insecurity-for-households-withchildren-rose-in-2020-disrupting-decade-longdecline/.
169 USDA—Food and Nutrition Service, National
Data Bank—Publicly available data.
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or more of three Federal food and nutrition
assistance programs (SNAP, WIC, NSLP).170
This same report indicated that in
households with income below 185 percent
of the poverty line, those that received free
or reduced-price school lunch in the
previous 30 days (in 2021) were less likely
to be food insecure compared to those that
did not receive free or reduced-price lunch,
indicating that school meals are an important
source of food for families facing hardships.
Student participation in the NSLP has been
found in other research to be associated with
a reduction in food insecurity.171 Households
with incomes near or below the Federal
poverty line, all households with children
and particularly households with children
headed by single women or single men, and
Black- and Hispanic-headed households have
higher rates of food insecurity than the
national average.159 Efforts to increase
participation in child nutrition programs
should focus on expanding and encouraging
participation among children in households
under these circumstances to promote equity
in daily nutrient intake nationwide.172
School meal programs reach children across
the U.S. from households of all income levels
and of various backgrounds and race/
ethnicities with nutritious meals. As noted
previously, the incremental effect of the rule
on program participation is uncertain as
regards both magnitude and direction; the
impact on food security is likewise uncertain.
Achievable Limits
While some elements of the 2012 rule were
challenging to meet over a long period of
time, this rule prescribes smaller gradual
shifts and targeted changes to improve the
overall nutrient content of meals. This rule
will require changes over time, at achievable
levels for schools and manufacturers. For
instance, reduction in sodium finalized in
this rule is about 15 percent at lunch and
about 10 percent at breakfast, which is more
manageable than the previous final targets in
the 2012 rule. The FDA’s voluntary sodium
reduction goals were introduced in October
2021, so manufacturers may already be
making changes to their products. Additional
reduction goals are expected in the coming
years. School food authorities and
manufacturers have indicated in the past that
the sodium targets from the 2012 rule
(especially Target 3) were challenging to
achieve due to several contributing factors.
These challenges included high labor and
equipment costs needed to support food
preparation, lack of lower sodium products
associated with school food authority
170 Matthew P. Rabbitt, Laura J. Hales, Michael P.
Burke, and Alisha Coleman-Jensen, October 2023.
Household Food Security in the United States in
2022, ERR–325, U.S. Department of Agriculture,
Economic Research Service.
171 Ralston, K.; Treen, K.; Coleman-Jensen, A.;
Guthrie, J. Children’s Food Security and USDA
Child Nutrition Programs; U.S. Department of
Agriculture, Economic Research Service:
Washington, DC, USA, 2017.
172 Gearan EC, Monzella K, Jennings L, Fox MK.
Differences in Diet Quality between School Lunch
Participants and Nonparticipants in the United
States by Income and Race. Nutrients.
2021;12(12):3891. https://www.mdpi.com/20726643/12/12/3891.
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urbanicity and size, and low levels of student
acceptance varying by cultural and regional
taste preferences.173 This rule addresses
these concerns by implementing a single
sodium reduction that is supported by FDA
voluntary sodium goals for industry and the
2019 dietary reference intakes 174 that call for
continued reduction in sodium intake to
promote health.
USDA data collection in 2022 175 showed
that reductions in total and added sugars
content of certain food types (yogurt, milk,
cereal) have already been observed, on
average, since the last data collection during
SY 2014–2015. This indicates that
manufacturers are willing to make shifts in
their product formulations and that
regulations for programs such as CACFP do
help to jumpstart product shifts. Another
aspect of this rule is that USDA finalizing
added sugar limits, rather than total sugars
limits. Limiting added sugars will not limit
naturally occurring sugars from fruit or milk,
which will allow many yogurt products
containing fruit and cereals containing dried
fruit to remain a part of school meals. This
less restrictive group of limits for added
sugars is more achievable for school food
authorities compared to total sugar limits and
reflects Dietary Guidelines recommendations.
The changes from this rule will occur
gradually over time. The sodium reduction
included in this final rule will not occur
until SY 2027–2028—over three years after
this rule is published. Schools will maintain
current sodium limits prior to the SY 2027–
2028 reduction. This gradual approach will
provide adequate lead in time, allowing
school food authorities and manufacturers
time to make changes to menus and available
food products. Reduction of added sugars in
school meals will also occur gradually,
beginning with product specific limits,
followed by an overall weekly limit. This
approach will also allow time for adjustment
both by food service operators and food/
beverage manufacturers. Gradual formulation
changes are also recommended for consumer
satisfaction and product desirability.176 177
Taste preference may be established early in
life and early food preference can influence
173 Gordon, E.L., Morrissey, N., Adams, E.,
Wieczorek, A. Glenn, M.E., Burke, S & Connor, P.
(2019). Successful Approaches to Reduce Sodium
in School Meals Final Report. Prepared by 2M
Research under Contract No. AG–3198–P–15–0040.
Alexandria, VA: U.S. Department of Agriculture,
Food and Nutrition Service.
174 https://nap.nationalacademies.org/catalog/
25353/dietary-reference-intakes-for-sodium-andpotassium.
175 USDA Food and Nutrition Service, Office of
Policy Support data collection of nutrition label
information from major cereal and yogurt
manufacturer K–12 and food service catalogs.
176 Hoppu U, Hopia A, Pohjanheimo T, et al.
Effect of Salt Reduction on Consumer Acceptance
and Sensory Quality of Food. Foods.
2017;6(12):103. Published 2017 Nov 27.
doi:10.3390/foods6120103.
177 Institute of Medicine (US) Committee on
Strategies to Reduce Sodium Intake; Henney JE,
Taylor CL, Boon CS, editors. Strategies to Reduce
Sodium Intake in the United States. Washington
(DC): National Academies Press (US); 2010.
Available from: https://www.ncbi.nlm.nih.gov/
books/NBK50956/ doi: 10.17226/12818.
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Federal Register / Vol. 89, No. 81 / Thursday, April 25, 2024 / Rules and Regulations
later food choices, so a gradual change may
influence school age children for years to
come. Along with gradual change, the added
sugars weekly limit and the sodium
reduction will be introduced the same year,
allowing for menus to be changed
simultaneously, avoiding the inconvenience
of making substantial changes multiple
times. This rule ensures that there will be a
high nutrition quality of school meals with
continued improvements over time.
VIII. Alternative(s)
Sodium
As a result of comments and feedback from
stakeholders on the proposed sodium limits,
this final rule implements more gradual and
attainable sodium reduction compared to the
proposed rule. USDA proposed to phase in
three 10 percent sodium reductions at lunch
and two 10 percent sodium reductions at
breakfast beginning in SY 2025–2026. The
estimated annual costs of the proposed
sodium limits assumed a higher increase in
labor and scratch cooking compared to the
final rule due to the proposed multiple
reductions. The estimated annual food and
labor costs of the proposed changes averaged
$102 million annually, compared to $68
million annual average for the final rule
sodium provisions. The equipment costs
associated with an increase in scratch
cooking assumed at least half, or 50,000, of
schools would spend between $7,350 to
$14,700 each leading up to the proposed
implementation years. The range of
equipment costs for the proposed rule was
$324 million to $792 million total, compared
to the final rule equipment costs of $70
million to $200 million total.
Added Sugars: Grain-Based Desserts
The final rule does not adopt the proposal
to limit grain-based desserts to 2 ounce
equivalents per week in school breakfasts.
The change from the proposed rule is to
avoid potential negative impacts on breakfast
programs, especially grab-and-go breakfasts.
The proposed grain-based dessert limit for
school breakfast had an estimated cost
savings of $23 million annually, because the
average cost of grains other than grain-based
desserts is estimated to be $0.22 less than the
average cost of grain-based desserts. The final
added sugar product limits annual cost is
$107 million annually, an increase from $84
million, after removing cost estimates
associated with the proposed limit for grainbased desserts at school breakfast.
alternative proposal for the whole grain-rich
requirement for final rule consideration.
Under the proposed alternative, all grains
offered in the school lunch and breakfast
programs would be required to be whole
grain-rich, except that one day each school
week, schools may offer grains that are not
whole grain-rich. On average, a similar
number of servings of whole grains would be
provided in the alternative proposal, just on
different days than before, leading to no
additional expected costs. In response to
comments, the final rule maintains the
existing whole grain-rich requirement.
Buy American
The final rule maintains reaching a 5
percent cap on total costs per school year on
non-domestic food purchases, consistent
with the proposed rule. However, the
proposed rule would have implemented a 5
percent cap as soon as the provision was
effective. The final rule takes an incremental
approach and considers procurement for SBP
in addition to NSLP. USDA made this change
in the rule in response to public comments
that suggested a 5 percent cap is too
restrictive under current procurement
conditions. The cost analysis assumptions
were the same in the proposed rule, but the
estimated costs were due to a shorter
implementation period and the associated
burden hours with meeting the cap in the
next school year for NSLP. While the final
rule incorporates a more gradual timeline,
burden estimates were calculated for both
SBP and NSLP ($7 million annually for both
the proposed rule and the final rule).
Other Considered Alternatives
Whole Grains
The final rule maintains the current whole
grain-rich requirements, however, the
proposed rule requested comments on an
In the process of creating this rule, there
were a few other potential alternatives
considered for added sugars and whole
grains. Initially, product-specific total sugar
limits were considered to align with the
current CACFP total sugar limits for breakfast
cereals and yogurts. However, this meant
restricting naturally occurring sugars and did
not align with the Dietary Guidelines for
Americans 178 which recommend limiting
added sugars to 10 percent of calories per
day. The product-specific added sugars limits
for yogurt, breakfast cereal, and flavored milk
are expected to help introduce the concept of
limiting added sugars, specifically as part of
the gradual goal of reaching the final 10
percent weekly limit. For whole grains, other
percentages were considered for the
proportions of grains to be served that must
be whole grain-rich (i.e., 50 or 100 percent).
However, 80 percent was decided on as a
measure that allows for flexibility, but also
still requiring that the majority of grains
offered in school meals are whole grain-rich.
IX. Appendix
TABLE A: ESTIMATED ANNUAL COSTS IN MOVING FROM TRANSITIONAL STANDARDS RULE TO THIS RULE BEGINNING BY SCHOOL YEAR
(MILLIONS), IN 2023 DOLLARS 179, 180
0.008
0.022
0.015
0.037
0.030
0.030
0.030
0.030
NA
0.025
[FR Doc. 2024–08098 Filed 4–24–24; 8:45 am]
BILLING CODE 3410–30–P
178 U.S. Department of Agriculture and U.S.
Department of Health and Human Services. Dietary
Guidelines for Americans, 2020–2025. 9th Edition.
December 2020. Available at DietaryGuidelines.gov.
VerDate Sep<11>2014
20:11 Apr 24, 2024
Jkt 262001
179 Due to rounding, numbers may not add up to
rounded sum in ‘total’ column exactly.
180 This data is the same as in table 1, but broken
down by school years instead of fiscal years.
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181 Annual average over 8 school years of rule
implementation.
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TOTAL PER MEAL
]]>Agencies
[Federal Register Volume 89, Number 81 (Thursday, April 25, 2024)]
[Rules and Regulations]
[Pages 31962-32120]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-08098]
[[Page 31961]]
Vol. 89
Thursday,
No. 81
April 25, 2024
Part III
Department of Agriculture
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Food and Nutrition Service
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7 CFR Parts 210, 215, 220, et al.
Child Nutrition Programs: Meal Patterns Consistent With the 2020-2025
Dietary Guidelines for Americans; Final Rule
Federal Register / Vol. 89 , No. 81 / Thursday, April 25, 2024 /
Rules and Regulations
[[Page 31962]]
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DEPARTMENT OF AGRICULTURE
Food and Nutrition Service
7 CFR Parts 210, 215, 220, 225, and 226
[FNS-2022-0043]
RIN 0584-AE88
Child Nutrition Programs: Meal Patterns Consistent With the 2020-
2025 Dietary Guidelines for Americans
AGENCY: Food and Nutrition Service (FNS), Department of Agriculture
(USDA).
ACTION: Final rule.
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SUMMARY: This rulemaking finalizes long-term school nutrition
requirements based on the goals of the Dietary Guidelines for
Americans, 2020-2025, robust stakeholder input, and lessons learned
from prior rulemakings. Notably, this rulemaking gradually phases in
added sugars limits for the school lunch and breakfast programs and in
the Child and Adult Care Food Program, updates total sugars limits for
breakfast cereals and yogurt to added sugars limits. As a reflection of
feedback from stakeholders, this final rule implements a single sodium
reduction in the school lunch and breakfast programs and commits to
studying the potential associations between sodium reduction and
student participation in the school lunch and breakfast programs. This
rulemaking addresses a variety of other school meal requirements,
including establishing long-term milk and whole grain requirements.
Finally, this rule includes provisions that strengthen Buy American
requirements. While this rulemaking takes effect school year 2024-2025,
the Department is gradually phasing in required changes over time.
Program operators are not required to make any changes to their menus
as a result of this rulemaking until school year 2025-2026 at the
earliest.
DATES: This final rule is effective July 1, 2024. Phased-in
implementation dates for required changes are addressed in the
SUPPLEMENTARY INFORMATION section of this rule.
ADDRESSES: Docket: Go to the Federal eRulemaking Portal at https://www.regulations.gov for access to the rulemaking docket, including any
background documents.
FOR FURTHER INFORMATION CONTACT: Andrea Farmer, Director, School Meals
Policy Division--4th floor, Food and Nutrition Service, 1320 Braddock
Place, Alexandria, VA 22314; telephone: 703-305-2054.
SUPPLEMENTARY INFORMATION:
Table of Contents
1. Background
Phased-In Implementation
USDA Support for Child Nutrition Programs
Federal Strategies To Reduce Sodium and Added Sugars in the Food
Supply
Overview of Public Comments
2. Added Sugars
3. Milk
3A: Flavored Milk
3B: Fluid Milk Substitutes: Responses to Request for Input
3C: Fluid Milk Substitutes: Nutrient Requirements
4. Whole Grains
5. Sodium
6. Meats/Meat Alternates at Breakfast
7. Substituting Vegetables for Grains in Tribal Communities
8. Traditional Indigenous Foods
9. Afterschool Snacks
10. Substituting Vegetables for Fruits at Breakfast
11. Nuts and Seeds
12. Beans, Peas, and Lentils at Lunch
13. Competitive Foods: Bean Dip Exemption
14. Meal Modifications
15. Clarification on Potable Water Requirements
16. Synthetic Trans Fats
17. Professional Standards: Hiring Exception for Medium and Large
Local Educational Agencies
18. Buy American
18A: Limited Exceptions to the Buy American Requirement
18B: Exception Documentation and Reporting Requirements
18C: Procurement Procedures
18D: Definition of ``Substantially''
18E: Clarification of Requirements for Harvested Farmed and Wild
Caught Fish
19. Geographic Preference
20. Miscellaneous Changes
21. Summary of Changes
21A: Descriptive Summary of Changes
21B: Table of Changes by Program
22. Procedural Matters
Regulatory Impact Analysis
Table of Abbreviations
AFHK--Action for Healthy Kids
ADA--Americans with Disabilities Act
CACFP--Child and Adult Care Food Program
CNA--Child Nutrition Act
CN-OPS--Child Nutrition Operations Study
FAR--Federal Acquisitions Regulations
FDA--U.S. Food and Drug Administration
FNS--Food and Nutrition Service
HEI--Healthy Eating Index
HMI--Healthy Meals Incentives
ICN--Institute of Child Nutrition
NASEM--National Academies of Science, Engineering, and Medicine
NSLA--National School Lunch Act
NSLP--National School Lunch Program
SBP--School Breakfast Program
SFSP--Summer Food Service Program
SNAP--Supplemental Nutrition Assistance Program
SMP--Special Milk Program
SY--School Year
USDA--U.S. Department of Agriculture
Section 1: Background
On February 7, 2023, the U.S. Department of Agriculture (USDA)
published Child Nutrition Programs: Revisions to Meal Patterns
Consistent With the 2020 Dietary Guidelines for Americans \1\ (``2023
proposed rule'') to update the school meal pattern requirements based
on a comprehensive review of the Dietary Guidelines for Americans,
2020-2025 (Dietary Guidelines), robust stakeholder input on the school
meal patterns, and lessons learned from prior rulemakings.\2\ USDA is
finalizing that proposed rule, with some modifications based on public
input. This final rule is the next step in an ongoing effort toward
healthier school meals that USDA and the broader school meals community
have been partnering on for well over a decade.
---------------------------------------------------------------------------
\1\ Child Nutrition Programs: Revisions to Meal Patterns
Consistent With the 2020 Dietary Guidelines for Americans (88 FR
8050, February 7, 2023). Available at: https://www.federalregister.gov/documents/2023/02/07/2023-02102/child-nutrition-programs-revisions-to-meal-patterns-consistent-with-the-2020-dietary-guidelines-for.
\2\ U.S. Department of Agriculture and U.S. Department of Health
and Human Services. 2020-2025 Dietary Guidelines for Americans. 9th
Edition. December 2020. Available at: https://www.dietaryguidelines.gov/.
---------------------------------------------------------------------------
Separately, on January 23, 2020, USDA published a proposed rule,
Simplifying Meal Service and Monitoring Requirements in the National
School Lunch and School Breakfast Programs (``the 2020 proposed
rule'').\3\ As noted in the 2023 proposed meal pattern rule, based on
public comment, USDA is finalizing certain meal pattern provisions from
the 2020 proposed rule in this final rule.\4\ The following sections
address rule provisions that were included in the 2020 proposed rule:
---------------------------------------------------------------------------
\3\ Simplifying Meal Service and Monitoring Requirements in the
National School Lunch and School Breakfast Programs (85 FR 4094,
January 23, 2020). Available at: https://www.federalregister.gov/documents/2020/01/23/2020-00926/simplifying-meal-service-and-monitoring-requirements-in-the-national-school-lunch-and-school.
\4\ Other provisions of the 2020 proposed rule related to
program monitoring were finalized in Child Nutrition Program
Integrity (88 FR 57792, August 23, 2023). Available at: https://www.federalregister.gov/documents/2023/08/23/2023-17992/child-nutrition-program-integrity.
Section 6: Meats/Meat Alternates at Breakfast
Section 12: Beans, Peas, and Lentils at Lunch
Section 14: Meal Modifications
Section 15: Clarification on Potable Water Requirements
Section 16: Synthetic Trans Fats
Through this rulemaking, USDA is exercising broad discretion
authorized by Congress to administer the school
[[Page 31963]]
lunch and breakfast programs and ensure meal patterns ``are consistent
with the goals of the most recent'' Dietary Guidelines.\5\ See 42
U.S.C. 1752, 1758(a)(1)(B), 1758(k)(1)(B), 1758(f)(1)(A), and
1758(a)(4)(B). Consistent with its historical position, USDA interprets
``consistent with the goals of'' the Dietary Guidelines to be a broad,
deferential phrase that requires consistency with the ultimate
objectives of Dietary Guidelines but not necessarily the adoption of
the specific consumption requirements or specific quantitative
recommendations in the Dietary Guidelines. Accordingly, through this
final rule, USDA is working to ensure an appropriate degree of
consistency between school meal patterns and the Dietary Guidelines by
considering operational feasibility and the ongoing recovery from the
impacts of COVID-19, while also ensuring schools can plan appealing
meals that encourage consumption and intake of key nutrients that are
essential for children's growth and development.
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\5\ The Dietary Guidelines, 2020-2025 provide four overarching
recommendations: (1) Follow a healthy dietary pattern at every life
stage. (2) Customize and enjoy nutrient-dense food and beverage
choices to reflect personal preferences, cultural traditions, and
budgetary considerations. (3) Focus on meeting food group needs with
nutrient-dense foods and beverages and stay within calorie limits.
(4) Limit foods and beverages higher in added sugars, saturated fat,
and sodium, and limit alcoholic beverages.
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This rulemaking updates current meal pattern requirements, which
were most recently updated in SY 2022-2023 through the final rule,
Child Nutrition Programs: Transitional Standards for Milk, Whole
Grains, and Sodium (``the transitional standards rule''). USDA intended
for the transitional standards rule to serve as a bridge, providing
immediate relief as schools returned to traditional school meal service
following extended use of COVID-19 meal pattern flexibilities. A
detailed overview of the transitional standards rule, USDA's
stakeholder engagement campaign, and other factors considered in the
proposed rule development can be found in the 2023 proposed rule
preamble.\6\ With this rule, USDA intends to further align school meal
nutrition requirements with the goals of the Dietary Guidelines, 2020-
2025. This effort is described in greater detail, as informed by public
comments on the proposed rule, throughout this preamble.
---------------------------------------------------------------------------
\6\ Child Nutrition Programs: Revisions to Meal Patterns
Consistent With the 2020 Dietary Guidelines for Americans (88 FR
8050, February 7, 2023). Available at: https://www.federalregister.gov/documents/2023/02/07/2023-02102/child-nutrition-programs-revisions-to-meal-patterns-consistent-with-the-2020-dietary-guidelines-for.
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Phased-In Implementation
For most children, school meals are the healthiest meals they
consume in a day,\7\ and USDA research has found that school meals
contribute positively to the diet quality of all participating
students.\8\ However, there is still room for improvement. For example,
the Dietary Guidelines for Americans, 2020-2025 indicates that about 70
to 80 percent of school children exceed the recommended daily limit of
added sugars.\9\ Research suggests that among adolescents, certain poor
dietary behaviors--such as skipping breakfast and infrequent
consumption of fruits and vegetables--worsened during the COVID-19
pandemic.\10\ Updating the school meal patterns is one strategy to
increase healthy dietary behaviors among school children for the long
term. Many children rely on school meals for more than half of their
food each school day, so even small nutritional improvements can make a
difference.\11\
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\7\ Liu J, Micha R, Li Y, Mozaffarian D. Trends in Food Sources
and Diet Quality Among US Children and Adults, 2003-2018. JAMA.
April 12, 2021. Available at: https://jamanetwork.com/journals/jamanetworkopen/fullarticle/2778453?utm_source=For_The_Media&utm_medium=referral&utm_campaign=ftm_links&utm_term=040921.
\8\ ``While USDA school meals were bigger contributors to the
caloric intakes of students from less food-secure households, they
contributed positively to the diet quality of all participating
students . . . For both food-insecure and food-secure students, the
average HEI scores for non-school foods were between 55 and 57,
whereas school foods scored between 79 and 81. School foods were
particularly noteworthy as sources of fruit, dairy, and whole
grains.'' U.S. Department of Agriculture. USDA School Meals Support
Food Security and Good Nutrition. May 3, 2021. Available at: https://www.ers.usda.gov/amber-waves/2021/may/usda-school-meals-support-food-security-and-good-nutrition/.
\9\ See ``Percent Exceeding Limits of Added Sugars, Saturated
Fat, and Sodium'' on pages 79, 82, and 85. U.S. Department of
Agriculture and U.S. Department of Health and Human Services. 2020-
2025 Dietary Guidelines for Americans. 9th Edition. December 2020.
Available at: https://www.dietaryguidelines.gov/.
\10\ Michael SL, Jones SE, Merlo CL, et al. Dietary and Physical
Activity Behaviors in 2021 and Changes from 2019 to 2021 Among High
School Students--Youth Risk Behavior Survey, United States, 2021.
MMWR Suppl 2023;72(Suppl-1):75-83. DOI: https://dx.doi.org/10.15585/mmwr.su7201a9.
\11\ Karen Weber Cullen, Tzu-An Chen, The contribution of the
USDA school breakfast and lunch program meals to student daily
dietary intake, Preventive Medicine Reports. March 2017. Available
at: https://www.sciencedirect.com/science/article/pii/S2211335516301516.
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At the same time, USDA understands that changes to the meal
patterns need to be gradual and predictable to give child nutrition
program operators and children time to adapt, and to allow industry
time to develop new products. This final rule responds to stakeholder
input by building in plenty of time for State agencies, school
nutrition professionals, and other program operators to successfully
implement the required changes. For example, as discussed in Section 2:
Added Sugars, USDA is gradually phasing in the product-based and weekly
limits for added sugars in the school meal programs. As discussed in
Section 5: Sodium, this final rule gives schools and manufacturers even
more time to reduce sodium compared to the proposed rule. As
recommended by numerous stakeholders, it also commits to examining
sodium reduction in school meals and assessing the potential impact of
these reductions on program operations and student participation. This
rulemaking does not make changes to the current whole grain
requirements for school meals and continues to allow schools to offer
flavored milk, subject to new added sugars limits, to all K-12
students. Although USDA considered alternatives for the whole grain and
flavored milk requirements, based on stakeholder input, USDA determined
that maintaining the current requirements would best position schools
and students for success.
Other changes in this rule simplify program regulations and provide
child nutrition program operators more flexibility to successfully plan
and prepare meals. These changes will be implemented on a quicker
timeline, as they provide optional administrative or operational
flexibilities but do not require operators to change menus or
operations. For example, this rulemaking makes it easier for schools to
offer meats/meat alternates at breakfast by removing the minimum grains
requirement. It removes the limit for nut and seed crediting at
breakfast, lunch, and supper in the child nutrition programs, making it
easier for operators to offer vegetarian meals. This rulemaking also
makes it easier for program operators to purchase local foods for the
child nutrition programs by allowing ``locally grown, raised, or
caught'' to be used as procurement specifications for unprocessed or
minimally processed food items.
Each provision of this rule, along with its implementation date, is
discussed in greater detail throughout this preamble. A chart outlining
each regulatory change and its implementation date is included in
Section 21: Summary of Changes.
[[Page 31964]]
USDA Support for Child Nutrition Programs
USDA is incredibly grateful for the dedication of child nutrition
program operators who serve children healthy meals with kindness and
care. USDA understands that some program operators continue to face
high food costs and supply chain issues. The Department is committed to
continuing to provide program operators with support to help them
succeed.
USDA is making a $100 million \12\ investment in the Healthy Meals
Incentives (HMI) Initiative, which is dedicated to improving the
nutritional quality of school meals through food systems
transformation, school food authority recognition and technical
assistance, the generation and sharing of innovative ideas and tested
practices, and grants. As part of a cooperative agreement to develop
and implement USDA's HMI Initiative, Action for Healthy Kids (AFHK) has
awarded nearly $30 million in grants to 264 small and/or rural school
food authorities across 44 States and the District of Columbia. These
school food authorities will use funding to modernize their operations
and provide more nutritious meals to students. Additionally, AFHK is
offering Recognition Awards to celebrate and spotlight school food
authorities who use innovative practices, student and community
engagement activities, and other strategies to provide meals that are
consistent with the Dietary Guidelines for Americans, 2020-2025.
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\12\ U.S. Department of Agriculture. USDA Launches $100 Million
Healthy School Meals Initiative, Announces Grant Program for Rural
Schools. September 23, 2022. Available at: https://www.fns.usda.gov/news-item/fns-0010.22.
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USDA also provides support to schools through its annual Patrick
Leahy Farm to School Grant Program. These funds support a wide range of
farm to school activities designed to improve access to local foods in
eligible schools from training, planning, and developing partnerships
to creating new menu items, expanding local supply chains, offering
taste tests to children, purchasing equipment, planting school gardens,
and organizing field trips to agricultural operations.
Finally, USDA will continue to provide technical assistance to
State agencies, schools, and other program operators to ensure they
have the guidance and support they need to successfully implement this
rule. USDA will release updated policy guidance and will host a series
of webinars to provide a detailed overview of this rulemaking. In
addition, communications resources related to this rulemaking are
available on the USDA Food and Nutrition Service website.\13\
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\13\ U.S. Department of Agriculture Food and Nutrition Service.
Available at: https://www.fns.usda.gov/.
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Federal Strategies To Reduce Sodium and Added Sugars in the Food Supply
USDA recognizes that schools and child and adult care institutions
are part of the broader food environment. In order to successfully make
improvements to the child nutrition program meal patterns, stakeholders
have emphasized that similar improvements must be made to the broader
food environment. For example, stakeholders have suggested that
children are more likely to accept lower sodium school meals if the
meals they consume outside of school are lower in sodium. Research has
shown that consumer preferences and expectations for salty tastes can
adjust as dietary intake changes.\14\
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\14\ The Food and Drug Administration. Memo: Salt Taste
Preference and Sodium Alternatives. 2016. Available at: https://www.regulations.gov/document/FDA-2014-D-0055-0152.
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To that end, other Federal agencies are supporting efforts to
improve dietary behaviors among the U.S. population. For example, the
Food and Drug Administration (FDA) is taking an iterative approach to
gradually reduce sodium in the U.S. food supply that includes
establishing voluntary sodium targets for industry, monitoring and
evaluating progress, and engaging with stakeholders. The FDA is
especially encouraging adoption of the voluntary targets by food
manufacturers whose products make up a significant proportion of
national sales in one or more food categories and restaurant chains
that are national and regional in scope.\15\ These efforts are
discussed in greater detail in Section 5: Sodium.
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\15\ The Food and Drug Administration. Sodium Reduction.
Available at: www.fda.gov/SodiumReduction.
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The FDA is also committed to reducing added sugars in the U.S. food
supply and in individual's diets. In 2016, FDA issued a final rule \16\
updating the Nutrition Facts label, which requires, in part, a
declaration of the added sugars in a serving of a product and the
percent Daily Value (% DV) for added sugars. Manufacturers with $10
million or more in annual sales were required to update their labels by
January 1, 2020; manufacturers with less than $10 million in annual
food sales were required to update their labels by January 1, 2021.
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\16\ Food Labeling: Revision of the Nutrition and Supplement
Facts Labels (81 FR 33742, May 27, 2016). Available at: https://www.federalregister.gov/documents/2016/05/27/2016-11867/food-labeling-revision-of-the-nutrition-and-supplement-facts-labels.
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Additionally, following the 2022 White House Conference on Hunger,
Nutrition, and Health, the White House released a National Strategy
\17\ that highlighted that the intake of added sugars for most
Americans is higher than what is recommended by the Dietary Guidelines
and included several FDA initiatives to accelerate efforts to empower
individuals with information and create a healthier food supply. In
November 2023, FDA, in collaboration with USDA and the U.S. Department
of Health and Human Services, held a virtual public meeting and
listening sessions entitled, ``Strategies to Reduce Added Sugars
Consumption in the United States.'' This public meeting was a
commitment made in the National Strategy and connected Federal
agencies, communities, and private industry to explore different
tactics for reducing added sugars in the U.S. food supply and in
individuals diets. Presentations during this meeting provided a
background on added sugars, discussed strategies for reducing added
sugars by other countries, and highlighted approaches to increase
engagement and education on added sugars. This meeting was accompanied
by two days of facilitated listening sessions where participants
offered feedback and recommendations for next steps on proposed
strategies.
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\17\ Biden-Harris Administration National Strategy on Hunger,
Nutrition, and Health, September 2022. Available at: https://www.whitehouse.gov/wp-content/uploads/2022/09/White-House-National-Strategy-on-Hunger-Nutrition-and-Health-FINAL.pdf.
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The U.S. Department of Health and Human Service's Office of Disease
Prevention and Health Promotion's Healthy People 2030 initiative also
includes a focus on reducing consumption of added sugars and sodium in
individuals aged 2 years and older.\18\ As detailed in Section 2: Added
Sugars and Section 5: Sodium, the Dietary Guidelines, which are updated
and jointly released by the USDA and the Department of Health and Human
Services, recommend limiting foods and beverages higher in added sugars
and sodium. Specifically, the Dietary Guidelines recommend that added
sugars make up less than 10 percent of calories per day for individuals
age 2 years and older. The Dietary Guidelines also recommend consuming
less than 2,300 milligrams of sodium per day--
[[Page 31965]]
and even less for children younger than age 14.\19\
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\18\ U.S. Department of Health and Human Service's Office of
Disease Prevention and Health Promotion. Health People 2030.
Available at: https://health.gov/healthypeople.
\19\ U.S. Department of Agriculture and U.S. Department of
Health and Human Services. 2020-2025 Dietary Guidelines for
Americans. 9th Edition. December 2020. Available at: https://www.dietaryguidelines.gov/.
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In addition, the historic White House Conference on Hunger,
Nutrition, and Health inspired actions to support a whole of society
approach to improving nutrition and health. Over $8 billion in public-
and private-sector commitments were made to improve food and nutrition
security, promote healthy choices, and improve physical activity. USDA
expects that, when carried through, the commitments made as part of the
White House Conference will support improvements to the broader food
environment, thereby supporting efforts to improve nutrition in school
and child and adult care settings.
For example, the private sector made the following commitments in
fall 2022: \20\
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\20\ The White House. FACT SHEET: The Biden-Harris
Administration Announces More Than $8 Billion in New Commitments as
Part of Call to Action for White House Conference on Hunger,
Nutrition, and Health. September 28, 2022. Available at: https://www.whitehouse.gov/briefing-room/statements-releases/2022/09/28/fact-sheet-the-biden-harris-administration-announces-more-than-8-billion-in-new-commitments-as-part-of-call-to-action-for-white-house-conference-on-hunger-nutrition-and-health/.
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Danone North America committed to prioritizing new
reduced-sugar, low-sugar, and no-added-sugar options in its children's
products and pledged that 95 percent of these products will contain
less than 10 grams of total sugar per 100 grams of food product by
2030.
The National Restaurant Association committed to expand
its Kids Live Well program to 45,000 additional restaurants and food
service locations. Kids Live Well is a voluntary initiative to help
restaurants offer healthier meal options for children that meet added
sugars, sodium, and calories thresholds established by the latest
nutrition science.
Tyson Foods committed to reformulating and improving the
nutritional value of its prepared foods portfolio, with a focus on
reducing sodium.
Walgreens committed to increasing the selection of fresh
food in its stores by 20 percent, including a greater variety of fresh
produce, and implementing new solutions to highlight healthy
ingredients and further reduce harmful ones.
The strides made in school nutrition over the past decade
demonstrate that healthier school meals are possible when everyone who
plays a part--food industry, school nutrition professionals, USDA, and
others--work together toward the common goal of improving children's
health. This includes USDA continuing to do its part to ensure schools
and other child nutrition program operators have the support they need
to successfully implement this rulemaking. USDA recognizes that child
nutrition program operators have a challenging job and appreciates
their tireless dedication to the children in their care. USDA is
continually looking for ways to better support program operators who
provide our Nation's children with nutritious meals and snacks. The
Department welcomes input from stakeholders on what additional guidance
and support State agencies, schools, and other program operators will
need to successfully implement this rulemaking.
Overview of Public Comments and USDA Response
USDA appreciates public interest in the proposed rule. USDA
initially provided a 60-day public comment period (February 7, 2023,
through April 10, 2023). Based on stakeholder requests \21\ for
additional time to review the rule and assess its impact, USDA extended
the public comment period by 30 days. During the 90-day comment period
(February 7, 2023, through May 10, 2023), USDA received more than
136,000 comments. Of the total, about 125,000 were form letters from 46
form letter campaigns, and about 5,000 were unique submissions. An
additional 6,400 were duplicate or non-germane submissions. USDA
received public comments from State agencies, school nutrition
professionals, advocacy groups, industry respondents, professional
associations, school districts, CACFP sponsoring organizations,
dietitians, and individuals, including students, parents and guardians,
grandparents, and other caregivers. Overall, over 23,000 respondents,
including over 700 unique submissions, supported the proposed rule in
its entirety. Over 6,000 respondents, including over 1,000 unique
submissions, opposed the proposed rule in its entirety.
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\21\ USDA received requests to extend the proposed rule comment
period from the American Commodity Distribution Association and the
Urban School Food Alliance and from Senator Boozman and
Representative Foxx. The letters are available at: https://www.regulations.gov/comment/FNS-2022-0043-2915 and https://www.regulations.gov/comment/FNS-2022-0043-12391.
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Many school nutrition professionals supported provisions of the
rule that provide menu planners more flexibility, and provisions that
maintain requirements that menu planners have already successfully
implemented. For example, a national organization representing tens of
thousands of school nutrition professionals offered support for the
following provisions that USDA ultimately finalized or committed to in
this final rule:
Maintaining the current requirement allowing all schools
to offer fat-free and low-fat milk, flavored and unflavored, to K-12
students.
Maintaining the current requirement that at least 80
percent of weekly grains offered in school meals are whole grain-rich.
Committing to conducting a study on potential associations
between sodium reduction and student participation.
Allowing schools more flexibility to offer meats/meat
alternates in place of grains at breakfast.
Allowing tribally operated schools, schools operated by
the Bureau of Indian Education, and schools serving primarily American
Indian or Alaska Native children to serve vegetables to meet the grains
requirement.
Codifying in regulation that traditional Indigenous foods
may be served in reimbursable school meals.
Allowing nuts and seeds to credit for the full meats/meat
alternates component in all child nutrition programs and meals.
Exempting bean dip from the total fat standard in Smart
Snacks regulations.
Allowing State agencies discretion to make exceptions to
the degree requirement for school nutrition directors hired in medium
and large districts.
USDA worked in collaboration with a data analysis company to code
and analyze the public comments using a commercial, web-based software
product. The Summary of Public Comments report is available under the
Browse Documents tab in docket FNS-2022-0043. All comments are posted
online at https://www.regulations.gov.\22\
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\22\ See: Docket FNS-2022-0043. Child Nutrition Programs:
Revisions to Meal Patterns Consistent with the 2020 Dietary
Guidelines for Americans. Available at: https://www.regulations.gov/docket/FNS-2022-0043.
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The following paragraphs describe general themes from the public
comments. Many respondents also provided feedback on the specific
proposals. This specific feedback is included in the subsequent
sections of the preamble, as applicable.
Public Comments: Dedication of School Nutrition Professionals
Several respondents expressed appreciation for the efforts of
school
[[Page 31966]]
nutrition professionals. An advocacy group noted that school nutrition
professionals provide balanced, nutritious meals to children, promoting
academic success and supporting the entire school community's efforts
to enrich the lives of students. Another respondent emphasized that
school nutrition professionals are deeply caring people who are
invested in children's health and wellbeing. An advocacy group agreed,
noting that school nutrition professionals go ``above and beyond'' to
keep children nourished; as an example, one respondent described
efforts at their school to create menus that are nutritionally
balanced, flavorful, and cater to student preferences. When considering
options for the final rule, one dietitian urged USDA to listen to the
school nutrition professionals who ``do the work'' every day by
providing meals to children.
Respondents also commended successful implementation of school meal
pattern improvements established under the Healthy Hunger-Free Kids
Act. For example, one advocacy group reported that the updated
nutrition standards enhanced the nutritional quality of meals and
increased student participation. Another advocacy group noted that
school nutrition professionals have worked tirelessly to reduce sodium,
calories, and fat; to introduce students to whole grain foods; and to
increase fruits and vegetables in school meals. Another respondent was
proud of efforts made by school nutrition professionals thus far,
emphasizing that school meals are the healthiest meals that most
students receive each day. A joint response from several elected
officials stated that strong school nutrition requirements are ``one of
the most important public health achievements in a generation.'' This
response also noted that school cafeterias across the country are
``leading the way to serving healthy, delicious, and culturally
relevant foods'' to children.
USDA Response: USDA appreciates and agrees with public comments
that cited the important work of school nutrition professionals. The
Department values the vital work that school nutrition professionals
and other child nutrition program operators do every day to keep our
Nation's children nourished and healthy. In this final rule, USDA
incorporated feedback from individuals with firsthand experience
operating the child nutrition programs. For example, this feedback is
reflected in Section 3A: Flavored Milk, where USDA considered
operational challenges that respondents raised in response to the
proposal that would have applied different milk requirements across
grade levels. USDA also considered child nutrition program operator
feedback when determining implementation dates for the provisions of
this rule, including in Section 5: Sodium.
Public Comments: Nutrition and Health
Over 11,000 respondents cited the need for strong nutrition
requirements. For example, an advocacy group suggested that aligning
the school meal nutrition requirements with the goals of the Dietary
Guidelines ``sets our students up for lifelong success.'' Other
respondents emphasized the importance of strong nutrition requirements
to children's academic achievement and overall wellbeing. A form letter
campaign stated that strong nutrition requirements can help to address
health disparities and improve nutrition equity. Another respondent
agreed, maintaining that the child nutrition programs are important
tools in addressing health disparities and advancing nutrition security
among communities of color. An advocacy group emphasized the importance
of nutritious meals in schools and child care settings, noting that
these meals often represent a significant portion of children's food
intake. This respondent argued that continued improvement in the meal
patterns could reduce children's risk for diet-related diseases.
Another advocacy group agreed, stating that the school meal programs
provide more than half of some students' calories and are often the
healthiest sources of food for school children. An industry respondent
described school meals as a nutrition ``success story'' and stated that
good nutrition is essential to children's growth, learning, and
development. An advocacy group emphasized that the proposed evidence-
based standards will ``make school meals even healthier.''
Some respondents, including a form letter campaign, encouraged USDA
to go further; for example, by implementing sodium reductions beyond
those proposed in the rule. Respondents also encouraged USDA to
strengthen the whole grains proposal, by requiring all grains offered
in school meals to be whole grain-rich.\23\ Others urged USDA to adopt
a swifter timeline for implementation; for example, one advocacy group
recommended that USDA ``implement the strongest nutrition standards on
the fastest timeline possible.'' A few respondents, including an
advocacy group, encouraged USDA to update the Summer Food Service
Program meal patterns to more closely align with the goals of the
Dietary Guidelines, including by serving more fruits, vegetables, and
whole grains. These respondents emphasized the importance of providing
children with healthy, high-quality meals year-round.
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\23\ To meet USDA's whole grain-rich criteria, a product must
contain at least 50 percent whole grains, and the remaining grain
content of the product must be enriched.
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USDA Response: USDA appreciates public comments that discussed the
importance of strong, science-based nutrition requirements and the
positive impact on children's health. The Department agrees with
respondents that asserted that meals served in child nutrition programs
contribute to healthy dietary patterns and improved dietary outcomes.
In this final rule, USDA has considered these important factors, along
with the importance of ensuring that the meal patterns are practical
and achievable for schools. For example, this final rule will continue
to reduce sodium in school meals, while taking a gradual approach to
implementation to give schools, students, and the food industry time to
adapt to the changes. The Department also acknowledges comments that
requested more whole grains in school meals; instead, this final rule
continues the requirement that the majority of grains offered be whole
grain-rich, while providing schools some flexibility to offer other
grains. USDA remains committed to its statutory obligation to establish
nutrition requirements for school meals that are consistent with the
goals of the Dietary Guidelines in efforts to improve the nutritional
quality of program meals serve to the Nation's children. While USDA
appreciates public comments regarding the Summer Food Service Program,
extensive updates to the Summer Food Service Program meal pattern are
outside the scope of this rulemaking.
Public Comments: Student Participation
Many respondents expressed concern that the proposed changes could
negatively impact student participation and consumption of meals. Some
respondents suggested that, if the proposed rule was finalized,
students would choose to consume a lunch from home or elsewhere instead
of participating in the school meal programs. These respondents argued
that this would result in non-participating students consuming a meal
that is less nutritious than school meals offered under the current
requirements. Other respondents maintained that school nutrition
programs would suffer if student participation declines.
[[Page 31967]]
Respondents also raised concerns that the proposed limits for added
sugars and sodium could make school meals less appealing to students.
For example, an industry respondent asserted that the proposed added
sugars and sodium limits would negatively impact the taste of foods
that children enjoy. However, an advocacy group noted that students and
families support improving the nutritional quality of school meals,
citing the role school meals play in student academic achievement and
health. A joint comment from several elected officials suggested that
children enjoy healthier school meals, and that the amount of food
wasted in schools has not changed since the nutrition requirements were
updated in 2012.
USDA Response: Although USDA does not expect that updated nutrition
requirements would negatively impact student participation in the
school meal programs,\24\ the Department acknowledges respondent
concerns about the importance of maintaining student participation. The
Department strives to advance nutrition security while also ensuring
that school meals are appealing and enjoyable to students. The changes
finalized in this rule thoughtfully consider both concerns by gradually
phasing in required changes, such as the added sugars limits and sodium
reduction. This phased-in approach will give program operators and
children time to implement and adapt to the changes. Additionally, as
noted in Section 5: Sodium, as part of this rulemaking, USDA has
committed to conducting a study on potential associations between
sodium reduction and student participation.
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\24\ According to USDA research conducted following
implementation of the 2012 final rule, ``There was a positive and
statistically significant association between student participation
in the NSLP and the nutritional quality of NSLP lunches, as measured
by the HEI-2010. Rates of student participation were significantly
higher in schools with HEI-2010 scores in the third and highest
quartiles (that is, the top half) of the distribution compared to
the lowest quartile.'' See page 38. U.S. Department of Agriculture,
Food and Nutrition Service, Office of Policy Support, School
Nutrition and Meal Cost Study Summary of Findings. Available at:
https://www.fns.usda.gov/school-nutrition-and-meal-cost-study.
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Public Comments: Product Availability
Numerous respondents argued that the proposed meal pattern changes
would force vendors out of the child nutrition market, making it more
difficult for schools to find products needed to comply with USDA meal
requirements. Several respondents expressed concern about increased
costs, procurement challenges, and reduced options for school breakfast
under the proposed rule. A joint comment from a group of elected
officials agreed, arguing that the proposed changes could lead to
``increased complexity'' in school food purchasing, decreasing the
number of options available to schools and forcing schools to compete
for a limited supply of specialized foods. Respondents also expressed
concern about ongoing supply chain issues and food-price inflation. One
industry respondent suggested that rather than implementing new
requirements, USDA should maintain the current requirements and teach
students how to make healthy choices through nutrition education.
A school food service director stated that procurement would be a
challenge under the proposed rule and suggested that it takes ``a few
years'' for manufacturers to catch up with new regulations. This
respondent also suggested manufacturers do not dedicate as much space
to school-specific items in their warehouses, which impacts product
availability. An advocacy group argued that it takes industry three to
five years, and a significant amount of money, to reformulate ``any
given product.'' This respondent also pointed out that the K-12 sector
tends to be the least lucrative market for the food industry. Another
advocacy group agreed, arguing that the cost of producing and stocking
specialized K-12 menu items is ``too high,'' and the demand for these
products on the commercial market is ``too low.'' A State agency also
expressed concern about proposed implementation timeframes, noting that
manufacturer and distributor capabilities have not yet returned to pre-
pandemic levels. A form letter campaign encouraged USDA to work with
the food industry to ensure product availability, particularly for
lower sodium products. One respondent stated that school kitchens are
understaffed, and school nutrition professionals rely heavily on food
manufacturers to provide meals for students. A school district raised
concerns about increased pressure for scratch cooking; while this
respondent acknowledged they would ``love for more scratch options to
be served,'' they did not view this as a realistic option given current
staffing challenges.
Respondents also cited the importance of supporting local farmers
and producers and helping children learn about where their food comes
from. One advocacy group cited the benefits of local food systems,
which they argued stimulate local economies and provide reliable
product availability during supply chain disruptions. Respondents
encouraged USDA to consider equity and inclusion in establishing
regulatory requirements; for example, an advocacy group suggested that
USDA consider the broader food system and supply chains, including farm
workers and other people employed in the food system. This respondent
supported efforts to create a fair and sustainable agricultural
economy. Another respondent advocated for policies that encourage child
nutrition operators to source from socially disadvantaged producers. An
advocacy group suggested that purchases made through the child
nutrition programs should prioritize respect, equity, and inclusion
across the food supply chain. This respondent asserted that supporting
local and regional foods systems, including by strengthening support
for locally owned agricultural and food processing operations, may
create more diversified and resilient supply chains. While offering
support for the proposed geographic preference provision, some
respondents suggested operators would need more financial support to
purchase local foods, especially in the CACFP.
USDA Response: USDA recognizes that many stakeholders expressed
concerns about product availability and understands the impact of
product availability and cost on the operation of the child nutrition
programs, as well as challenges posed by staffing constraints. At the
same time, the Department appreciates public comments that cited
continuous industry efforts to develop nutritious foods for child
nutrition programs, and many of the provisions of this rule incorporate
input from industry respondents. For example, USDA agrees with public
comments that stated there are products already available that meet the
product-based limits for added sugars, which aligns with data collected
by USDA.\25\ USDA expects that ongoing industry efforts to develop
nutritious foods will support product availability for child nutrition
programs. USDA considered each of these factors when developing this
final rule; for example, by moving forward with important changes while
providing ample time for implementation. As detailed in Section 2:
Added Sugars and Section 5: Sodium, USDA is providing about three years
for implementation of the weekly added sugars limit and sodium
reduction in response to public comments that suggested it takes about
[[Page 31968]]
three years for manufacturers to reformulate products.
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\25\ U.S. Department of Agriculture Food and Nutrition Service,
Office of Policy Support data collection of nutrition label
information from major cereal and yogurt manufacturer K-12 and food
service catalogs. Data were collected on 191 total cereal products
and 110 total yogurt products. See Regulatory Impact Analysis.
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Public Comments: Financial Challenges
Many respondents emphasized the importance of investing in school
nutrition programs financially. For example, respondents cited concerns
about food cost, inflation, meal debt, and supply chain challenges. An
advocacy group noted that many stakeholder concerns about the proposed
rule are related to resource constraints. This respondent suggested
financial pressures undermine the program's goals. Another advocacy
group expressed appreciation for the HMI Initiative to support small
and rural schools, and supported USDA's plans to provide technical
assistance, share best practices, and encourage collaboration with the
food industry. One State agency supported increased meal
reimbursements, investments in kitchen equipment and infrastructure,
and more training opportunities. Another respondent agreed, stating
that the program reimbursement rates are ``simply not enough'' to cover
food and labor costs, while others suggested schools would need extra
supplies or funding to implement the updated meal patterns.
USDA Response: USDA acknowledges public comments from program
operators that emphasized that financial sustainability is critical for
successful child nutrition program operations. USDA understands that
schools and other program operators need support to succeed in
implementing updated requirements. As part of this effort, USDA
continues to provide high-quality, cost-effective foods through USDA
Foods and various grant-funded opportunities. USDA has also provided
significant additional financial resources to address specific needs,
such as the $3.8 billion in supply chain assistance funds provided in
fiscal years 2021, 2022, and 2023 to address product shortages and
price increases experienced after the pandemic.\26\ While increasing
the Federal reimbursement rates is beyond USDA's authority and would
require Congressional action, the Department remains committed to
providing support to child nutrition program operators.
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\26\ U.S. Department of Agriculture. FNS Actions to Address
COVID-19 Related Supply Chain Disruptions. Available at: https://www.fns.usda.gov/supply-chain.
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Public Comments: Practical and Durable Standards
Numerous respondents discussed the need for attainable nutrition
requirements. Some respondents asserted that certain proposals are
impractical, or that the school nutrition programs cannot move beyond
current meal pattern requirements. A handful of respondents suggested
maintaining the transitional standards as the permanent school
nutrition requirements, suggesting the transitional standards represent
a ``middle ground.'' Many respondents recommended that USDA study the
impact of the current meal pattern requirements prior to making any
further changes.
Respondents cited concerns about the broader food environment,
arguing that schools are not solely to blame for children's excess
consumption of added sugars and sodium. One respondent pointed out that
when considering the full calendar year, many children consume more
meals outside of school than in school. This respondent agreed that
school meals contribute to children's health but emphasized the
importance of improving food choices in other settings. Another
respondent recommended that USDA focus on the ``food system as a
whole'' and engage in a public health initiative to reduce added sugars
and sodium in grocery store foods.
Regarding implementation dates, one dietitian recommended that USDA
delay implementation of any new requirements until 2027. This
respondent suggested that additional time would allow school nutrition
directors to educate staff on upcoming changes and allow industry to
develop new food products. A school district agreed, describing the
implementation timeframes for added sugars and sodium as ``a little
rushed.'' Several respondents specifically recommended delaying
implementation of any provisions that would impact CACFP. These
respondents raised concerns about a lack of CACFP stakeholder
engagement and the importance of providing the CACFP community ample
time to prepare for the changes.
Other respondents felt the proposed implementation timeframes were
adequate. An advocacy group argued that the food industry could adapt
to incremental implementation, which they noted was built into the
proposed rule. A State agency agreed, suggesting that the proposed
phased-in implementation would provide the opportunity to revise menu
offerings, manage inventory, and offer technical assistance. A second
State agency affirmed that the proposed implementation dates provide
adequate lead time; however, this respondent also noted that timely
publication of the final rule would be ``critical'' to allow for
product reformulation, procurement, and menu planning. An advocacy
group described USDA's phased-in approach as ``reasonable,'' stating
that the proposed rule would improve school meals ``in a practical
way.'' This respondent suggested that the proposed sodium limits, for
example, would give schools time to plan, source, and test meals that
meet the proposed limits. Another advocacy group that described the
rule as ``scientifically sound and practical'' argued that the proposed
rule would give schools time to implement the new requirements while
also prioritizing children's health. A joint response from several
elected officials maintained that the proposed rule included a
``common-sense incremental approach to implementation, making it
feasible for schools and the food industry to have success.'' An
advocacy group supported the phased-in implementation for sodium but
noted it would be ``incumbent'' upon manufacturers to reformulate
products to ensure the limits would be effective.
USDA Response: USDA recognizes that meaningful improvement in the
nutritional quality of school meals is best achieved by nutrition
requirements that are both ambitious and feasible. The Department also
acknowledges public comments that suggested child nutrition program
operators need time to successfully implement new requirements, and
that feedback is reflected in this final rule. For example, this final
rule gradually phases in certain requirements, such as the added sugars
limits, to provide program operators time to make menu changes.
Additionally, this final rule includes several provisions that provide
menu planners with more options to create healthy meals; for example,
by making it easier for schools to offer meats/meat alternates at
breakfast (see Section 6: Meats/Meat Alternates at Breakfast). By
incorporating valuable feedback from stakeholders into this final rule,
the Department continues to put children's health at the forefront
while also ensuring that the program requirements are achievable and
set up schools and child and adult care institutions for success.
Public Comments: Other School Nutrition Comments
Some respondents recommended other meal pattern requirements or
offered suggestions for USDA to consider. One respondent suggested
adding a requirement for ``healthy fats'' in school meals, while
another recommended establishing a minimum fiber standard. Another
respondent encouraged USDA to provide recipes, training, and nutrition
education to
[[Page 31969]]
encourage schools to offer more seafood in school meals. Numerous
respondents recommended that USDA restrict or limit the use of
artificial or non-nutritive sweeteners in school meals. Others
encouraged USDA to provide incentives for fresh fruits and vegetables,
rather than restricting certain foods. A form letter campaign and
numerous other respondents supported expanding access to vegetarian,
vegan, or plant-based school meals. One respondent suggested
implementing a plant-based protein requirement in school meals, while
another encouraged schools to adopt a ``meat-free day.'' A few
respondents noted that Black, Indigenous, and other People of Color
(BIPOC) are three times as likely to follow a plant-based diet than
white people and suggested that providing more plant-based meals would
support equity in the school meal programs. Respondents also cited the
importance of meeting cultural food preferences. For example, one
advocacy group noted that food is ``socially and emotionally
nurturing'' and emphasized the importance of meeting nutrition
requirements as well as food preferences. Another advocacy group cited
a research brief that suggested that ``enhancing the palatability and
cultural appropriateness of meals'' offered would improve meal
consumption.
A few respondents, particularly those who operate multiple child
nutrition programs, supported stronger alignment of the nutrition
requirements for all program meal patterns. A student encouraged USDA
to seek student perspectives on meal pattern requirements. This
respondent suggested students who participate in the school meal
programs would provide important perspectives on food waste, cultural
relevance, and nutrition. Although outside the scope of this
rulemaking, several respondents supported expanding access to free
school meals and providing students with more time to eat school lunch.
For example, one respondent noted that studies have shown that even
modest increases in time to eat result in ``improved consumption,
particularly of fruit and vegetables, and reduced food waste.''
USDA Response: USDA appreciates public comments that provided
additional feedback and suggestions for new requirements beyond what
was proposed. Certain suggestions, such as adjusting the eligibility
requirements for free meals or providing more time for children to eat
their meals, are beyond USDA's authority. While USDA does not have
authority to regulate the length of school meal periods, USDA
encourages schools to provide children adequate seat time to consume
their meals. USDA acknowledges public comments encouraging more plant-
based meals as a strategy to support equity in school meals. Meal
pattern requirements are established to provide the foundation of well-
balanced meals, and USDA encourages program operators to develop menus
that meet the needs of their diverse communities. This rulemaking
provides more opportunities for schools to offer plant-based meals. In
response to requests to streamline program requirements, USDA has
endeavored to better align child nutrition program requirements in this
rulemaking; for example, by aligning nut and seed crediting across all
child nutrition programs and meals (see Section 11: Nuts and Seeds).
While other suggestions outside the scope of this rulemaking, such as
developing requirements for ``healthy fats'' and artificial sweeteners,
are not included in the final rule, the Department remains committed to
providing the technical assistance needed to enable schools to serve
diverse, culturally diverse meals to meet the unique needs and
preferences of their students.
Public Comments: Child and Adult Care Food Program
Although the proposed rule primarily focused on revisions to the
school meal patterns, the following proposals applied to CACFP:
Added Sugars: USDA proposed updating the current CACFP
total sugars limits for breakfast cereals and yogurt to added sugars
limits, consistent with the proposed limits for breakfast cereals and
yogurt in the school meal programs.
Whole grains definition: USDA proposed adding a definition
of ``whole grain-rich'' to CACFP regulations, consistent with the
definition USDA proposed adding in school meal regulations.
Menu Planning Options for American Indian and Alaska
Native Students: USDA proposed to allow CACFP institutions and
facilities serving primarily American Indian or Alaska Native children
to substitute vegetables for grains. This proposal also applied to
NSLP, SBP, and SFSP.
Nuts and Seeds: USDA proposed to allow nuts and seeds to
credit for the full meats/meat alternates component in all child
nutrition program meals and snacks. This proposal applied to NSLP, SBP,
SFSP, and CACFP.
Geographic Preference: USDA proposed to expand geographic
preference options by allowing ``locally grown, raised, or caught'' as
procurement specifications for unprocessed or minimally processed food
items in the child nutrition programs. This proposal applied to NSLP,
SBP, SFSP, and CACFP.
Miscellaneous Changes: USDA proposed to change the name of
the ``meats/meat alternates'' meal component to ``protein sources'' in
CACFP, consistent with the proposed change in NSLP and SBP. USDA also
proposed a few other minor terminology changes and meal pattern table
revisions that impact CACFP.
Proposals from Prior USDA Rulemaking: USDA signaled its
intent to finalize a prior proposal that would update meal modification
regulations for disability and non-disability reasons, impacting NSLP,
SBP, and CACFP. USDA signaled its intent to finalize a prior proposal
regarding a technical correction for nutrient requirements for fluid
milk substitutes, impacting NSLP, SMP, SBP, and CACFP.
With the exception of the proposal to change the name of the
``meats/meat alternates'' meal component to ``protein sources'' in
CACFP, which is not finalized, all of the proposed changes to CACFP are
finalized in this rulemaking.
USDA received over 90 comments from CACFP sponsoring organizations.
USDA also received comments from advocacy groups representing the CACFP
community, and hundreds of form letters from individuals who are a part
of the CACFP community. An advocacy group recommended that USDA engage
CACFP stakeholders before finalizing and implementing the rule. This
respondent argued such engagement is necessary to understand the rule's
impacts on CACFP, including costs, product availability, and
nutritional quality. Another advocacy group emphasized the importance
of supporting efforts to stabilize the CACFP workforce. This respondent
recommended delaying implementation to ensure that the CACFP community
has time to prepare for implementation and provide input on the
proposed changes.
Specific feedback from the CACFP community is detailed in the
relevant sections throughout this preamble. At a high level, concerns
raised by the CACFP community include:
Potential impact on training, technical assistance, and
resource development, especially related to the proposed terminology
change for the meats/meat alternates component.
Potential costs associated with updating websites,
materials, menus, and recipes.
The need for implementation support for the proposed
changes, such as the need for tools and resources to
[[Page 31970]]
successfully implement the proposed added sugars limits for yogurt and
cereal. Specifically, one advocacy group recommended USDA develop an
``approved'' list of products that could be offered under the added
sugars limits.
An overall concern that the proposed rule lacked a ``CACFP
lens,'' and therefore did not adequately consider its potential impact
on the CACFP community.
The CACFP community also raised concerns about other challenges
facing operators that were outside the scope of the proposed rule. For
example, respondents noted ongoing pandemic recovery, staff shortages,
and vendor losses, and the loss of pandemic-era funding and
flexibilities. Respondents emphasized the importance of supporting
CACFP, which one advocacy group described as a ``financial and
nutritional lifeline'' for many children and families. Other
respondents agreed, noting that CACFP plays a ``vital role in
supporting good nutrition'' and providing ``quality affordable child
care'' for families.
USDA Response: USDA appreciates public comments received on behalf
of the CACFP community and agrees that CACFP operators play a vital
role in supporting the goals of child nutrition programs. USDA
acknowledges that the listening sessions conducted prior to the
development of the proposed rule were primarily focused on nutrition
requirements for school meal programs, given that the majority of the
provisions in the proposed rule relate to NSLP and SBP. However, many
of the organizations that USDA engaged with through these listening
sessions also advocate on behalf of CACFP and/or SFSP operators, in
addition to school meals. USDA also received over 8,000 comments on the
transitional standards rule, including comments related to CACFP, which
were considered in the development of the proposed rule. Public
comments submitted in response to the 2023 proposed rule, including
those submitted by the CACFP community, were also crucially important
to the development of this final rule. As emphasized throughout the
proposed rule, USDA greatly values this feedback. USDA has responded to
the CACFP community's feedback in the subsequent sections of the rule,
especially Section 2: Added Sugars and Section 20: Miscellaneous
Changes.
Public Comments: Supplemental Nutrition Assistance Program
Several respondents raised concerns about the Supplemental
Nutrition Assistance Program, or SNAP, a USDA Federal assistance
program. While comments related to SNAP are outside the scope of this
rulemaking, USDA is providing a summary of the comments here.
Respondents were concerned that SNAP does not impose the same nutrition
requirements as USDA's child nutrition programs. These respondents
asserted that students, including those participating in SNAP, are
exposed to unhealthy food outside of school. Some respondents argued
that all Federal nutrition programs, including SNAP, should have the
same nutrition requirements. For example, a dietitian suggested that if
USDA finalizes added sugars limits for school meals, those limits
should also apply to SNAP.
USDA Response: USDA appreciates public comments about SNAP and its
relation to the Department's other Federal assistance programs,
including the child nutrition programs. USDA's mission is to increase
food security and reduce hunger by providing children and income
eligible people access to food, a healthful diet, and nutrition
education in a way that supports American agriculture and inspires
public confidence. Within that mission, USDA administers 16 critical
nutrition assistance programs, one of which is SNAP, the Nation's
largest domestic food and nutrition assistance program for income
eligible Americans. SNAP is the primary source of nutrition assistance
for millions of people each month, and SNAP participants can purchase a
variety of eligible foods items, as defined by statute.\27\ USDA is
committed to helping SNAP participants and all Americans make healthier
food choices through evidenced-based nutrition education. SNAP-Ed is an
evidenced-based, federally funded grant program that supports SNAP
participants with nutrition education to help participants maximize
benefits and make healthy food choices to promote nutrition security.
In USDA's most recent analysis of food purchases by SNAP and non-SNAP
households,\28\ SNAP households and non-SNAP households purchased
similar types of foods, such as fruit, vegetables, and milk. This
affirms that SNAP households are purchasing similar types of nutrient-
dense foods compared to non-SNAP households. Additionally, USDA
encourages healthy eating for SNAP participants through incentive
programs, which provide additional ways to make healthy choices, such
as purchasing fruits and vegetables, easier for SNAP participants.
Recent research \29\ shows that participants of the Gus Schumacher
Nutrition Incentive Program (GusNIP) reported greater fruit and
vegetable intake and improvements in food security. Similarly, in a
Healthy Incentive Pilot (HIP) report,\30\ participants spent more SNAP
benefits on fruits and vegetables than non-HIP households. SNAP
incentive programs, along with all USDA Federal nutrition assistance
programs, play an important role in making nutritious foods more
accessible and affordable. While there are differences across the
programs, each of USDA's Federal nutrition assistance programs are
critical to advancing nutrition security and promoting healthy dietary
patterns.
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\27\ See: Section 3(k) of the Food and Nutrition Act of 2008 (7
U.S.C. 2012(k)).
\28\ U.S. Department of Agriculture. Foods Typically Purchased
by Supplemental Nutrition Assistance Program (SNAP) Households.
November 18, 2016. Available at: https://www.fns.usda.gov/snap/foods-typically-purchased-supplemental-nutrition-assistance-program-snap-households.
\29\ GusNIP NTAE. Gus Schumacher Nutrition Incentive Program
(GusNIP): Impact Findings Y3: September 1, 2021 to August 31, 2022.
Prepared for U.S. Department of Agriculture, National Institute of
Food and Agriculture; 2023. Available at: https://nutritionincentivehub.org/gusnip-ntae-y3-impact-findings.
\30\ U.S. Department of Agriculture. Evaluation of the Healthy
Incentives Pilot (HIP) Final Report. September 2014. Available at:
https://www.fns.usda.gov/snap/hip/final-evaluation-report.
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Section 2: Added Sugars
Current Requirement
Currently, there are no added sugars limits in the school meal
programs. Under the current regulations, schools may choose to serve
some menu items and meals that are high in added sugars, provided they
meet average weekly calorie limits (7 CFR 210.10(f)(1) and
220.8(f)(1)).
The Dietary Guidelines for Americans, 2020-2025 recommends limiting
intake of added sugars to less than 10 percent of calories per day.
School meal data from school year (SY) 2014-2015 found that the average
percentage of calories from added sugars in school meals was
approximately 11 percent in school lunch and 17 percent in school
breakfast.\31\ The Dietary Guidelines further indicate that 70 to 80
percent of all school-aged children exceed the recommended limit for
added sugars.\32\ The current calorie requirements for the school meal
programs are intended to encourage schools to choose nutrient-dense
foods and beverages. However,
[[Page 31971]]
USDA determined that a specific added sugars requirement would more
effectively reduce added sugars in school meals, consistent with the
goals of the Dietary Guidelines.
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\31\ Fox MK, Gearan EC, Schwartz C. Added Sugars in School Meals
and the Diets of School-Age Children. Nutrients. 2021; 13(2):471.
Available at: https://doi.org/10.3390/nu13020471.
\32\ U.S. Department of Agriculture and U.S. Department of
Health and Human Services. 2020-2025 Dietary Guidelines for
Americans. 9th Edition. December 2020. Available at: https://www.dietaryguidelines.gov/.
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Proposed Rule
USDA proposed to reduce added sugars in school meals through a
gradual, phased-in, two-step approach: product-based limits followed by
a weekly dietary limit. First, beginning in SY 2025-2026, USDA proposed
to implement quantitative limits for leading sources of added sugars in
school meals. The proposed product-based limits were as follows:
Grain-based desserts: would be limited to no more than 2
ounce equivalents per week in school breakfast, consistent with the
current limit for school lunch. Examples of grain-based desserts
include cereal bars, doughnuts, sweet rolls, toaster pastries, coffee
cakes, and fruit turnovers.\33\
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\33\ U.S. Department of Agriculture, Food Buying Guide for Child
Nutrition Programs. Available at: https://foodbuyingguide.fns.usda.gov/Appendix/DownLoadFBG. See: Section 4--
Grains, Exhibit A: Grain Requirements for Child Nutrition Programs,
for a list of grain-based desserts.
---------------------------------------------------------------------------
Breakfast cereals: would be limited to no more than 6
grams of added sugars per dry ounce.
Yogurt: would be limited to no more than 12 grams of added
sugars per 6 ounces.
Flavored milk: would be limited to no more than 10 grams
of added sugars per 8 fluid ounces or, for flavored milk sold as a
competitive food \34\ for middle and high schools, 15 grams of added
sugars per 12 fluid ounces.\35\
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\34\ Competitive food is a term to define all food and beverages
that are available for sale to students on the school campus during
the school day. (7 CFR 210.11(a)(2))
\35\ For clarification, USDA proposed a higher added sugars
limit for flavored milk sold as a competitive food in middle and
high schools due to the larger serving size. The serving size for
milk offered as part of a reimbursable meal is 8 fluid ounces. Milks
sold to middle and high school students as a competitive food may be
up to 12 fluid ounces.
---------------------------------------------------------------------------
For the second step, beginning in SY 2027-2028, USDA proposed to
implement a dietary specification for added sugars. The dietary
specification would limit added sugars to less than 10 percent of
calories per week in the school lunch and breakfast programs. This
weekly limit would be in addition to the product-based limits described
above.
USDA requested public input on both steps as well as the following
questions:
USDA is proposing product-specific limits on the following
foods to improve the nutritional quality of meals served to children:
grain-based desserts, breakfast cereals, yogurt, and flavored milk. Do
stakeholders have input on the products and specific limits included in
this proposal?
Do the proposed implementation timeframes provide
appropriate lead time for food manufacturers and schools to
successfully implement the new added sugars standards? Why or why not?
What impact will the proposed added sugars standards have
on school meal menu planning and the foods schools serve at breakfast
and lunch, including the overall nutrition of meals served to children?
For consistency across child nutrition programs, USDA also proposed
to apply the product-based added sugars limits to breakfast cereals and
yogurt served in the CACFP; under the proposed rule, the added sugars
limits would replace the current total sugars limits for breakfast
cereals and yogurt in CACFP. The proposed product-based limits for
CACFP aligned with the proposed limits for school breakfast and lunch,
and were as follows:
Breakfast cereals: would be limited to no more than 6
grams of added sugars per dry ounce.
Yogurt: would be limited to no more than 12 grams of added
sugars per 6 ounces.
Public Comments
USDA received tens of thousands of comments on added sugars, with
most in support of reducing added sugars in school meals. State
agencies, school nutrition professionals, advocacy groups, industry
respondents, professional organizations, CACFP sponsoring
organizations, dietitians, and individual respondents, such as parents
and students, provided input on the proposals for added sugars. At a
high-level, respondents provided the following feedback on added sugars
requirements:
Limiting added sugars in school meals is important for
children's health and academic performance.
Product-based limits would incentivize the food industry
to reformulate products to help schools meet the weekly added sugars
limit.
Many respondents expressed a preference for one type of
limit over the other:
Some respondents suggested that product-based limits would
be easier and less burdensome for program operators to implement
compared to the weekly limit.
Other respondents asserted that weekly limits align with
recommendations from the Dietary Guidelines and would allow more
flexibility for menu planners compared to the product-based limits.
The following paragraphs describe specific feedback on the proposal
as well as feedback on each step of the proposal: product-based limits
and weekly limits.
Reducing Added Sugars and Children's Health
Numerous respondents, including advocacy groups, school districts,
school nutrition professionals, parents, and a few form letter
campaigns, supported added sugars limits in school meals. Several
advocacy groups justified limits on added sugars based on the
recommendations from the Dietary Guidelines. One advocacy group
asserted that reducing added sugars is ``urgent'' because children's
current intake of added sugars is high. Other proponents reasoned that
implementing added sugars limits in school meals would be beneficial to
children's health. An advocacy group applauded the proposal because it
makes a distinction between naturally occurring and added sugars and
creates an incentive to reduce added sugars in ``hyper-processed
products.'' A few parents emphasized that reducing added sugars is a
top health priority. One parent strongly supported the proposed limits,
stating that currently, ``children who rely on school meals [have] no
option but to eat sugary breakfasts.'' An individual cited multiple
studies demonstrating the negative impacts of added sugars on health,
and an advocacy group noted that consuming too many added sugars can
increase the risk of type 2 diabetes and heart disease. A few
individuals and a form letter campaign affirmed that reducing added
sugars may help address health disparities by improving the overall
nutritional quality of school meals.
Challenges With Reducing Added Sugars
Other respondents cited challenges with reducing added sugars in
school meals. A school district appreciated USDA's efforts but voiced
concerns that an added sugars limit would drastically reduce schools'
buying options. One school food service director claimed that school
meals are already low in sugar and that tracking added sugars would be
another standard to monitor. An industry respondent noted that if the
proposed rule is finalized, added sugars would be the only element in
the meal pattern ``with two prongs of compliance monitoring,'' as it
would be subject to both product-based and weekly limits. A dietitian
expressed concern about the palatability of meals, adding that
[[Page 31972]]
limiting added sugars could negatively impact student participation.
One individual supported reducing added sugars, but expressed concern
that students will not like the food, which could increase food waste.
One industry respondent argued that the existing calorie ranges
``adequately control for sugar'' and schools ``should not be further
regulated'' with added sugars limits. Another industry respondent
opposed the proposed added sugars limits due to the cost of product
reformulation. An advocacy group also raised concerns about product
reformulation, noting that each time a food producer needs to change
the specifications of a product, it can take up to three years and cost
as much as $750,000 per item. This respondent was concerned that some
manufacturers may choose to stop making school-specific items instead
of reformulating their products.
Proposed Approach: Product-Based Limits
Over 86,000 respondents, including 96 unique comments, supported
the proposed product-based limits in general; comment counts specific
to each product-based limit are detailed in each product-based comment
summary section, below. A school district suggested that product-based
limits would provide helpful benchmarks for initial added sugars
reductions. An industry respondent asserted that product-based limits
would help reduce added sugars in breakfast items. An individual
agreed, stating that limiting high-sugar breakfast items would support
children in the classroom as well. This respondent explained that
breakfasts that are high in sugar do not provide sustainable energy for
students to focus in the classroom. A professional organization stated
that product-based limits would promote ``progress toward more nutrient
dense'' foods, and that the phased-in approach would allow schools and
manufacturers time to ``learn and adapt.''
Other respondents supported the product-based limits but did not
support the weekly limit. For example, an advocacy group affirmed that
the product-based limits would be easier for schools operationally,
noting that CACFP sponsoring organizations have successfully
implemented product-based limits for breakfast cereals and yogurt. This
advocacy group stated that product-based limits would better align
child nutrition program requirements and reduce administrative burden.
A State agency suggested that the proposed product-based limits would
help to educate the public about the health impacts of added sugars.
However, this State agency did not support the weekly limit, asserting
that it may be burdensome for schools. A school district also preferred
the product-based limits over the weekly limit, suggesting that
product-based limits would be easier to implement after schools
overcome the initial burden of identifying compliant products. An
advocacy group agreed, maintaining that the product-based limits are
necessary to reduce added sugars at breakfast, but noting that the
weekly limit would ``negatively impact school meal menu planning.'' An
industry respondent described the product-based limits as ``appropriate
tools to reduce consumption of added sugars,'' and argued that an
additional weekly limit would be ``duplicative.''
About 100 respondents, including 81 unique comments, opposed
proposed product-based limits in general; comment counts specific to
each product-based limit are detailed in each product-based comment
summary section, below. A food service director opposed the proposed
limits for school breakfast specifically, describing breakfast as an
important meal and suggesting that some added sugar encourages students
to eat breakfast. An individual stated that product-based limits would
decrease the availability of grab-and-go meals and would reduce overall
breakfast participation. Several respondents, including industry
respondents, school districts, and dietitians, added that product-based
limits would hinder alternative breakfast models (e.g., breakfast in
the classroom) because pre-packaged, grain-based desserts are more
commonly offered in these models. A dietitian claimed that even though
some popular whole grain products served at breakfast contain added
sugars, the nutritional benefits of these foods ``outweigh the sugar
content.'' A State agency agreed that breakfast cereals, yogurt, and
flavored milks provide ``numerous essential nutrients'' and raised
concerns about the potential negative impacts of decreased consumption
under the product-based limits. A few school districts expressed
concerns about increased costs. An industry respondent asserted that
product-based limits are ``too prescriptive and unnecessarily
complicate the nutrition standards.'' Instead of requiring the product-
based limits, a State agency suggested USDA partner with K-12 food
manufacturers to work toward implementation of voluntary, product-based
added sugars limits.
Proposed Product-Based Limit: Grain-Based Desserts at Breakfast
Over 900 respondents supported the proposed limit for grain-based
desserts in school breakfast, including 20 unique comments. A parent
applauded limits for grain-based desserts at breakfast, suggesting that
they would ``encourage more nutrient-dense choices.'' An individual
supported limits on grain-based desserts, asserting that schools can
``find healthier ways to serve breakfast.'' A school nutrition
professional agreed, supporting a limit on ``desserts [and] sweet
entr[eacute]es during breakfast.'' An advocacy group explained that
applying the current school lunch limit for grain-based desserts to
school breakfasts (i.e., the ability to offer up to 2 ounce equivalents
of grain-based desserts per week) would help simplify menu
requirements.
Over 700 respondents opposed the proposed limit for grain-based
desserts in school breakfast, including 85 unique comments. Many
opponents stated that grain-based desserts are popular among students
and that limiting these foods may impact student breakfast
participation. An individual raised concerns that schools have few
options at breakfast and reducing grain-based desserts would further
limit menus. An advocacy group noted that currently, schools offer a
variety of grain items at breakfast to promote participation, for
example, by including whole grain-rich toaster pastries and whole
grain-rich cereal bars daily, along with whole grain donuts and whole
grain cinnamon rolls on occasion. This respondent maintained that the
proposed rule would severely limit schools' ability to serve these
popular items at breakfast. A school district noted that convenient,
on-the-go grain items are important options for students who attend
morning tutoring to recover from learning loss following the COVID-19
pandemic.
Several respondents cited confusion about the definition of
``grain-based dessert'' as described in Exhibit A: Grain Requirements
for Child Nutrition Programs of the Food Buying Guide.\36\ An industry
respondent argued that under current policy, grain-based desserts are a
``list of foods with no explanation of what sets them apart from other
grain foods.'' This respondent noted this list includes a wide range of
foods that can differ
[[Page 31973]]
vastly in added sugars content. Additionally, this respondent suggested
that under the proposed rule, manufacturers would have little incentive
to reduce added sugars in grain-based desserts, since these products
would still face ``strict limitations,'' regardless of their added
sugars content. A State agency noted that items such as cereal bars are
not typically identified as ``desserts'' outside of the child nutrition
programs and encouraged USDA to reevaluate the food items that are
considered grain-based desserts. A form letter campaign agreed,
pointing out that many items considered to be grain-based desserts are
offered as part of a balanced breakfast at school or at home. A State
agency requested clarification on what the proposed grain-based dessert
limit for school breakfast would mean for preschool meals, noting that
the meal pattern currently does not allow any grain-based desserts to
be offered to preschoolers.
---------------------------------------------------------------------------
\36\ U.S. Department of Agriculture, Food Buying Guide for Child
Nutrition Programs. Available at: https://foodbuyingguide.fns.usda.gov/Appendix/DownLoadFBG. See: Section 4--
Grains, Exhibit A: Grain Requirements for Child Nutrition Programs,
for a list of grain-based desserts.
---------------------------------------------------------------------------
Proposed Product-Based Limit: Breakfast Cereals
Over 900 respondents supported the proposed product-based added
sugars limit for breakfast cereals, including 20 unique comments. Many
respondents supported the proposal for breakfast cereals without
providing additional rationale. A State agency affirmed that there are
plenty of breakfast cereals that already meet the proposed product-
based limit. This State agency also suggested that the implementation
date would provide sufficient time for manufacturers to decrease added
sugars in non-compliant breakfast cereals. Another State agency
supported limiting added sugars in breakfast cereals but recommended
increasing the limit to 8 or 9 grams per dry ounce, instead of the
proposed 6 grams per dry ounce.
About 50 respondents opposed the proposed product-based limit for
breakfast cereals, including 33 unique comments. A school nutrition
professional and several school districts expressed concern that the
product-based limit for breakfast cereals would severely limit variety.
An industry respondent claimed that they provide numerous breakfast
cereal options that are inexpensive, convenient, and popular with
students, and argued that the product-based limit is not necessary
because the weekly limit would effectively limit breakfast cereals that
are high in added sugars. This respondent stated that their school
breakfast cereals provide less than 8 grams of added sugars per
serving, but that the product-based limit would limit their options for
schools to only two cereals. A school district argued that the
breakfast cereals that meet the proposed product-based limit are not
preferred by students.
Proposed Product-Based Limit: Yogurt
Nearly 1,000 respondents supported the proposed product-based added
sugars limit for yogurt, including 24 unique comments. An industry
respondent suggested that ``many options on the market meet the
proposed limit'' for yogurt (12 grams of added sugars per 6 ounces).
This respondent noted that manufacturers have greater ability to
formulate yogurts that meet a product-based limit, as opposed to a
weekly limit. Another industry respondent suggested that some yogurts
would meet the proposed product-based limit, while others would not,
potentially requiring reformulation. A parent who supported the
product-based limit suggested that yogurt could be sweetened with fruit
instead of added sugars. A professional organization noted that most
yogurt served in their program already meets the proposed product-based
limit and described it as ``realistic for manufacturers and programs.''
Forty respondents opposed the proposed product-based added sugars
limit for yogurt, including 21 unique comments. A CACFP sponsoring
organization asserted that it would limit the yogurt that program
operators can offer and only allow varieties that ``children will not
want to eat.'' A State agency described the proposed limit as
``confusing,'' noting that most yogurt comes in 4-ounce packages and
schools would need to ``do culinary math'' to determine how to apply
the limit, which was for 6-ounce packages. An industry respondent
suggested that yogurt products should be allowed to have various levels
of sugars so that schools have more flexibility in selecting products.
One school district shared that yogurt varieties that are currently
popular with students at breakfast would not meet the product-based
limit. This respondent raised concerns that, under the proposed limit,
certain varieties of yogurt would be eliminated from their menus and
there would be ``limited choices for replacements.''
Proposed Product-Based Limit: Flavored Milk
Over 900 respondents supported the proposed product-based limit for
flavored milks, including 44 unique comments. A State agency maintained
that they did not expect the flavored milk limit to be an issue, as
dairy suppliers are already working to reduce added sugars in flavored
milks. Another State agency and two professional associations also
supported the proposed limits, and one of these professional
associations noted that most milk producers already meet the proposed
limit. A school district confirmed that flavored milks currently
offered in their district meet the proposed added sugars limit. An
industry respondent suggested that the proposed product-based limit for
flavored milks is ``likely achievable'' but cautioned that some
reformulation efforts to reduce added sugars have started to impact
palatability. An advocacy group recommended applying the added sugars
limits for flavored milks to SMP and CACFP ``to ensure maximum positive
impact on child health.''
Fifty respondents opposed the proposed product-based limit for
flavored milks, all of which were unique comments. A State agency
suggested that the product-based limit for flavored milks ``may not be
necessary and may cause difficulties for schools lacking access to
multiple options.'' This State agency pointed to existing efforts in
the dairy industry to reduce added sugars in flavored milks, including
the International Dairy Foods Association's recent commitment to lower
added sugars in flavored milks available in schools.\37\ While
acknowledging the great improvement, the State agency noted that,
depending on their location, some rural schools may not have access to
flavored milk options that meet the proposed limit. Another State
agency expressed concern about the proposed limit, noting that
producers in their State currently offer a fat-free, flavored milk with
11 grams of added sugars per 8 fluid ounces. This State agency
questioned whether it would be worth the financial burden for this
producer to reformulate their product to reduce added sugars by 1 gram
and meet the proposed 10 grams of added sugars per 8 fluid ounces
limit. Another State agency mentioned a milk distributor
[[Page 31974]]
that currently has a flavored milk option with 13 grams of added sugars
per 8 fluid ounces. Numerous respondents provided additional input on
flavored milks, which is detailed in Section 3A: Flavored Milk.
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\37\ In April 2023, the International Dairy Foods Association
announced its ``Healthy School Milk Commitment.'' According to a
press release from the International Dairy Foods Association,
``[b]eginning with the 2025-2026 school year, 37 school milk
processors representing more than 90% of the school milk volume in
the United States commit to provide healthy, nutritious school milk
options with no more than 10 grams of added sugar per 8 fluid ounce
serving.'' See: International Dairy Foods Association. IDFA
Announces `Healthy School Milk Commitment' to Provide Nutritious
Milk with Less Added Sugar for Students in Public Schools,
Surpassing USDA Standards. April 5, 2023. Available at: https://www.idfa.org/news/idfa-announces-healthy-school-milk-commitment-to-provide-nutritious-milk-with-less-added-sugar-for-students-in-public-schools-surpassing-usda-standards.
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Product-Based Limits: Impact on Child and Adult Care Food Program
USDA also received feedback from the CACFP community about how the
proposed product-based limits for breakfast cereals and yogurt would
affect CACFP. Several respondents opposed any changes to current CACFP
total sugars limits, citing the potential burden of implementing the
change and the operational differences between school meals and CACFP.
For example, an advocacy group suggested that USDA's review of
breakfast cereals and yogurt, which focused on products for K-12
schools, did not necessarily reflect the yogurt products available to
CACFP operators. An industry respondent agreed, adding that there may
be ``little to no demand for these products in grocery stores,'' and
products that are commonly served in schools may not be available in
the broader food supply. Another industry respondent suggested that the
proposed change for yogurt could impact the type of yogurt available in
CACFP, resulting in ``less preferred yogurt types'' offered in the
Program.
An advocacy group asserted that making major changes to CACFP
nutrition requirements to ``streamline'' work for schools is ``a
mistake'' and recommended USDA further engage the CACFP community prior
to finalizing the proposed breakfast cereal and yogurt added sugars
limits in CACFP. This respondent added that CACFP providers use other
Federal assistance programs, rather than school meals, as their point
of reference. Another advocacy group noted that for breakfast cereals,
the proposed change from 6 grams of total sugars per dry ounce to 6
grams of added sugars per dry ounce would effectively increase the
total sugar allowance. This respondent raised concerns about children's
health and did not support what they considered to be a more lenient
requirement. A State agency suggested applying the current CACFP total
sugars limits for breakfast cereals and yogurt to school meals, instead
of finalizing the proposed changes.
Other respondents supported applying the added sugars limits for
breakfast cereals and yogurt to CACFP. An industry respondent supported
transitioning total sugars limits to added sugars limits, arguing that
it ``appropriately reflects updated nutrition guidance.'' A dietitian
noted that CACFP operators have successfully implemented total sugars
limits and supported updating to added sugars limits because added
sugars are now consistently listed on the Nutrition Facts label. An
advocacy group agreed, suggesting that the updated Nutrition Facts
label provides the information CACFP providers would need to select
products, adding that there are numerous products in the marketplace
that meet the proposed added sugars limits. Another advocacy group
suggested that applying the proposed change to CACFP ``will simplify
standards for both industry and program operators.''
A form letter campaign supported the product-based limit for
breakfast cereals only if CACFP providers can continue to use a list of
allowable products provided by the Women, Infant and Children (WIC)
Program to identify breakfast cereals that are allowed in the CACFP.
Respondents explained that each State agency administering the WIC
program provides a list of allowable foods (WIC list) that meet program
nutrition requirements. A few advocacy groups highlighted the
importance of the WIC list, with one noting that the majority of CACFP
providers shop in retail stores and use the WIC list to easily identify
cereals that meet CACFP total sugars requirements. A State agency
agreed, describing the WIC list of approved breakfast cereals as ``an
important resource used by both the State agency and CACFP sponsoring
organizations.'' An advocacy group also highlighted the importance of
collaboration between CACFP and WIC, including shared materials and
messaging. An individual suggested that USDA develop its own ``approved
list'' of breakfast cereals and yogurt that child care providers
participating in CACFP could use to easily identify compliant products.
Respondents also offered additional suggestions for how USDA could
support the CACFP community in implementing the proposed changes, if
finalized. An advocacy group recommended that USDA provide tools and
resources to help CACFP providers identify allowable products. A CACFP
sponsoring organization encouraged USDA to provide flexibility to
operators and sites as they transition from current total sugars limits
to the proposed added sugars limits. An advocacy group noted that CACFP
sponsoring organizations would need ample time to retrain providers and
suggested that USDA provide additional funding to support nutrition
education, training, and material revisions at the local level. Another
advocacy group noted that family child care providers often run small
programs where they take on multiple roles including owner, caregiver,
meal preparer, and more. This respondent suggested that child care
providers may need additional time to implement the added sugars limits
for breakfast cereals and yogurt, noting that the changes will require
time, training, money, and technical assistance. However, a State
agency suggested that the proposed rule would provide adequate lead
time for CACFP operators to successfully implement the changes, noting
that the State would have time to train sponsoring organizations and
update technical assistance resources. However, the State agency
recommended that USDA implement the CACFP changes at the beginning of
the fiscal year, rather than the beginning of the school year, to match
the start of the CACFP program year.
Proposed Approach: Weekly Limits
Over 76,000 respondents, including 114 unique comments, supported a
weekly added sugars limit in the school lunch and breakfast programs--
the second step of USDA's proposal to reduce added sugars. A dietitian
supported the weekly limit, stating that it gives ``menu planners
creative freedom'' to develop a menu that incorporates foods that are
currently available in the K-12 market. Another respondent explained
that the weekly limit would give schools flexibility to occasionally
offer foods that are higher in added sugars, provided they are balanced
with foods that are lower in added sugars throughout the week.
Some respondents supported a weekly limit only and did not support
the product-based limits. For example, an advocacy group suggested that
a weekly limit would be easier to monitor, require less training, and
provide more flexibility for operators, while still reducing overall
intake of added sugars. This respondent suggested that all foods can
fit into a healthy diet, just in different amounts and frequencies. An
industry respondent also supported the weekly limit only, claiming that
product-based limits would cause additional burden to monitor and limit
student choice, which could reduce participation. Another industry
respondent agreed, suggesting that a 10 percent weekly limit in lunch
and breakfast programs provides flexibility for operators, maintains
options for students, and gives manufacturers time to reformulate. This
respondent argued that the product-based limits would ``reduce
opportunities for whole grain intake'' due to the limitation of popular
[[Page 31975]]
grains items that contain added sugars, such as granola bars. A school
district indicated that the weekly limit would be easier to implement
and track and allow schools to decide ``where to spend'' their added
sugars in lunch and breakfast menus. An advocacy group supported the
weekly limit and suggested the two-step approach would ``cause a lot of
confusion and be difficult to manage and document.''
Forty-eight respondents opposed the weekly limit, the majority of
which were unique comments. A school district argued that the weekly
limit would ``significantly increase administrative burden.'' A State
agency agreed, citing specific concern about the potential burden on
small, rural districts that do not use menu planning software and may
not have the staff capacity to calculate additional dietary
specifications. An industry respondent suggested that a weekly limit
may ``inadvertently lower the amount of yogurt and dairy'' offered in
school meals, which they asserted could decrease ``the nutritiousness
of meals.''
Two-Step Approach: Product-Based and Weekly Limits
Some respondents supported both steps of USDA's phased-in approach
to reduce added sugars in school meals and emphasized the importance of
the product-based and weekly limits. An advocacy group strongly
supported both proposals, noting that product-based limits alone would
not achieve dietary recommendations for added sugars. This respondent
emphasized the importance of implementing a weekly limit, while also
pointing out the benefits of product-based added sugars limits--
particularly for foods that are commonly served in school meals. A
professional association also supported the two-step approach,
suggesting that it would allow ``schools, food manufacturers, and
distributors time to learn and adapt.'' An advocacy group supported
both added sugars proposals, but acknowledged that between the two, a
weekly limit would be ``more effective'' to meet the Dietary Guidelines
recommendations. Another advocacy group described USDA's two-step
approach as ``balanced and practical'' and supported phasing in the
product-based limits, followed by the weekly limit. A group of Federal
elected officials applauded USDA's proposed ``gradual, phased-in
approach'' to reducing added sugars in school meals. An advocacy group
added that the ``combination of product-based and weekly limits are
especially important'' given children's current, excessive intake of
added sugars.
Proposed Implementation Timeframes
Over 300 respondents addressed the proposed implementation
timeframes, including 96 unique comments. Several respondents suggested
that USDA provide schools and industry more time for implementation. A
dietitian and a school nutrition director asserted that the product-
based limits do not provide manufacturers enough lead time and
emphasized that reformulating products takes time and money. A school
district stated that they ``have faith'' that manufacturers can reduce
added sugars over time and students will adapt, but they do not think
two years is adequate. This respondent was concerned about the
potential impact on student participation, noting the importance of
providing breakfast cereals and other food items that students enjoy. A
respondent who supported the proposals expressed concern that the
implementation timeline may not be long enough for small or rural
school districts that rely on smaller food distributors. One State
agency conducted a survey of child nutrition directors and NSLP
stakeholders and found that 75 percent of respondents did not feel the
proposed implementation dates were sufficient due to limited product
availability, supply chain challenges, and student acceptance.
A dietitian recommended lengthening the implementation timeline and
providing funding to manufacturers. This respondent was concerned that
manufacturers would ``quit the K-12 segment if they cannot comply''
with the limits. An industry respondent argued that, if manufacturers
do not have additional lead time, student participation may decrease
due to ``inadequate options.'' This respondent added that ``the school
nutrition ecosystem is simply too fragile'' to follow the proposed
timeline. A joint response from three industry respondents argued that
the proposed implementation dates would not provide enough time for
reformulation that ensures product quality and safety, given the
functional role sugar plays as an ingredient (e.g., preventing
spoilage, improving texture, and adding bulk). This response raised
concerns about student acceptability, student participation, and food
waste under the proposed implementation timeline. A dietitian suggested
that if manufacturers are not able to create products to meet the
proposed product-based limits, then the implementation dates should be
delayed.
An industry respondent maintained that added sugar reductions must
be tailored for each individual product, suggesting that timelines can
range from 12 to 16 months. This respondent added that schools
typically solicit bids for products one year in advance, adding at
least 12 months to the process. This industry respondent noted that
additional time for implementation would allow schools to update meal
planning databases, provide time to develop menu planning tools, and
help students gradually adjust to foods containing less added sugars. A
State agency relayed that manufacturers have expressed that SY 2027-
2028 would be a more realistic timeframe to implement breakfast cereal
and yogurt limits. An advocacy group acknowledged that timelines for
research and development vary and suggested that K-12 food companies
typically report needing 3 years to reformulate products. A State
agency also recommended providing at least 3 years after release of the
final rule to allow adequate time to update trainings, materials,
product formulations, and school menus. An individual suggested that
industry would need a minimum of 3-5 years to reformulate or develop
food items that meet the proposed limits. A State agency and an
industry respondent expected product reformulation to take up to 5
years. Another industry respondent asserted that the proposed
implementation dates for added sugars are too short and suggested the
reductions occur more gradually over the next 20 years or more.
Other respondents suggested the proposed implementation timeframes
were adequate, and some recommended accelerating timeframes in the
interest of children's health. An advocacy group affirmed that phased-
in implementation would allow adequate time to implement the new
requirements. Another advocacy group recommended implementing the
weekly added sugars limit alongside the product-based limits in SY
2025-2026. A State agency also suggested implementing the product-based
limits and the weekly limit at the same time, suggesting that 12-18
months would be a reasonable amount of time for industry and schools to
prepare for changes. A parent suggested implementing the added sugars
limits on a quicker timeframe, suggesting that the limits ``need to
happen now'' due to what they consider to be an excessive amount of
sugar in school meals. An advocacy group agreed, suggesting that USDA
implement the added sugars limits ``as soon as is feasible,'' noting
that these updates will be beneficial to children's health. Similarly,
a second advocacy group stated that USDA
[[Page 31976]]
should implement the weekly limit in the school year immediately
following release of the final rule. A local government supported both
added sugars limits and the proposed implementation timeline; this
respondent did not recommend extensions ``due to the urgency needed in
reducing consumption of added sugars among children.'' An advocacy
group and a few individuals asserted that ``there is no credible reason
for USDA to delay achieving the reduction in sugar consumption,''
requesting implementation of the added sugars limits by fall 2023.
A school nutrition professional suggested that the proposed
implementation date for the product-based limits would provide ``plenty
of time'' but claimed the weekly limit would be ``much harder'' to
achieve. This respondent noted that many rural districts currently do
not have nutrition software to facilitate implementation of a weekly
limit for added sugars. Similarly, a dietitian suggested that the
implementation date for product-based limits is achievable, provided
that the final rule is published at least one year in advance of
implementation (by July 1, 2024). The respondent suggested that this
timing would allow USDA and State agencies to provide technical
assistance and training. However, this respondent recommended delaying
implementation of the weekly added sugars limit to allow additional
time for product reformulation and menu revisions.
One respondent encouraged USDA to remove the product-based limits
and implement the weekly limit no later than 2025. By accelerating
implementation of the weekly limit in school lunch and breakfast
programs, this respondent suggested USDA could support healthier meals
for children who are currently in school. An industry respondent also
recommended removing the product-based limits while maintaining the
proposed implementation of SY 2027-2028 for the weekly limit.
Alternative Approaches Suggested by Comments
Some respondents offered alternatives to the proposals, or
suggested changes. For example, an industry respondent suggested that
USDA determine the product-based limits using the average added sugars
content of currently available products. A professional organization
recommended that USDA establish total sugars limits, rather than added
sugars limits, for breakfast cereals and yogurt because of the
naturally occurring sugar content of those foods. An individual
suggested that USDA reduce sugar content in school breakfast by
following Smart Snacks in School requirements for sugar.\38\ A few
advocacy groups suggested USDA require or recommend product-based
limits for condiments and toppings, noting that these products
contribute to children's intake of added sugars, especially at
breakfast.
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\38\ Regulations for competitive food service and standards are
found at 7 CFR 210.11.
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Some respondents suggested alternatives to the proposed limit on
grain-based desserts in school breakfasts. A professional organization
and another respondent suggested that USDA prohibit (rather than limit)
grain-based desserts in the school meal programs to promote more
nutrient dense foods. A State agency recommended phasing in the grain-
based dessert limit by age/grade group, starting with K-5 children.
This State agency suggested this could help prevent a drastic drop in
participation among older students. A school nutrition professional
suggested that grain-based desserts should not be defined by the
product name, but by the amount of added sugars in the product. An
advocacy group also encouraged USDA to establish a quantitative added
sugars limit for grain-based desserts and suggested further reducing
the proposed added sugars limit for breakfast cereals.
An industry respondent suggested that if yogurt and flavored milks
are subject to product-based limits, they should be excluded from the
overall weekly limit. This respondent expressed concern that counting
yogurt and flavored milks in the overall weekly limit could create
``perverse and unintended incentives'' to remove these items from
meals. Another industry respondent suggested that USDA exempt the added
sugars in dried cranberries from the weekly added sugars limit. This
respondent argued that not providing an exemption for cranberry
products could discourage the consumption of products like cranberries
that include added sugar for processing and palatability.
A few respondents offered alternative suggestions for the weekly
added sugars limit. For example, a school nutrition director suggested
starting with a higher weekly dietary specification, such as 15
percent, and adjusting the percentage down as needed. This respondent
stated that a more gradual approach for the weekly limit would mirror
the proposed sodium reductions. Similarly, an advocacy group
recommended removing the product-based limits and instead, gradually
phasing in the weekly limit for lunch and breakfast meals. This
respondent recommended starting in SY 2025-2026 with a dietary
specification limiting meals to less than 25 percent of calories from
added sugars, and then implementing a 10 percent limit in SY 2027-2028.
A school district supported finalizing a 25 percent weekly limit in SY
2026-2027 and did not recommend further reductions. Another school
district recommended a weekly dietary limit of 35 percent of calories
from added sugars, with no product-based limits, beginning SY 2025-
2026.
However, an advocacy group stated that USDA ``should reject any
calls to set a limit higher than 10 percent'' because most children
would benefit from a diet with even fewer added sugars, as low as 4 to
8 percent. Another respondent argued that the proposed 10 percent limit
is ``still very high.'' An advocacy group agreed, recommending that
USDA take ``swifter and more far-reaching action'' by implementing a 6
percent weekly limit for added sugars. A local government recommended
that USDA apply the limit to both meals together (breakfast and lunch)
instead of applying the 10 percent weekly limit to each meal
separately. This respondent suggested this would increase the
feasibility of implementation, since breakfast foods typically
contribute larger amounts of added sugars. A school nutrition
professional suggested incentivizing--but not requiring--schools to
meet the 10 percent weekly limit.
Several respondents, including a national organization representing
tens of thousands of school nutritional professionals, recommended that
USDA make it easier for schools to offer meats/meat alternates in place
of grains at breakfast, which they argued would support reducing added
sugars in school breakfasts. This includes options suitable for grab-
and-go breakfast, such as protein-rich breakfast sandwiches and wraps.
A school district suggested many schools ``would love to be able to
offer eggs and sausage, or fruit and yogurt parfaits for breakfast,''
and requested that USDA remove the requirement to offer a minimum
amount of grains daily for breakfast. A dietitian recommended that USDA
require a meat/meat alternate at breakfast. A few industry respondents
maintained that the added sugars limit would ``create a drive in the
market to increase the protein content of breakfast items,'' noting
that the current grain minimum and cost constraints present a barrier
to offering meats/meat alternates at breakfast. Additional comments on
this topic, received in response to a prior
[[Page 31977]]
rulemaking, can be found in Section 6: Meats/Meat Alternates at
Breakfast.
Other Comments About Added Sugars
Respondents also submitted other comments about added sugars,
including comments related to sweeteners, which respondents used a
variety of terms to describe. A school nutrition professional raised
concerns that manufacturers would replace added sugars with
``artificial sweeteners'' when reformulating products to meet the
proposed limits. Similarly, a dietitian stated that while they support
reducing added sugars, food manufacturers would face challenges to meet
this requirement without using ``sugar substitutes.'' A school
nutrition professional suggested prohibiting ``non-caloric sweeteners
(both natural and artificial)'' in school meals, noting that there is
limited research on their long-term effects and expressed concern these
additives may cause stomach problems in young children. An individual
voiced similar concerns about ``low calorie sweeteners'' and suggested
prohibiting or labeling products so that parents or students can avoid
those food items, if desired.
A school district requested that the added sugars limits be
accompanied by an increase in reimbursement rates. This respondent
anticipated an increase in product costs as added sugars are replaced
with more expensive and healthier ingredients. One industry respondent
also shared financial concerns, suggesting that schools would need to
adjust menus by adding food items or increasing portion sizes to meet
calorie ranges if added sugars are reduced. This respondent suggested
one solution to this challenge would be to increase Federal funding.
Another industry respondent described the ``chronic underfunding of
school breakfasts'' and encouraged adequate resources to facilitate
schools offering nutritious breakfast items, such as fresh fruits and
vegetables. Although this respondent acknowledged their comment was
outside the scope of this rulemaking, they emphasized that funding
plays an important role in the types of foods that schools can offer
students.
A few advocacy groups encouraged USDA to provide sufficient time,
menu planning resources, and technical assistance to support
implementation of the added sugars limits. Specifically, some
respondents suggested USDA update its Team Nutrition resources for
reducing sugars in CACFP, if this requirement is finalized. A State
agency requested that USDA update Administrative Review guidance and
assessment tools, along with guidance on how schools can assess
compliance with the weekly limit. An advocacy group recommended that,
during implementation, schools should not be penalized and suggested
that USDA prioritize additional technical assistance and training for
schools that are struggling with compliance. A State agency provided
similar input, suggesting that USDA provide schools a ``grace period''
for corrective actions during the first Administrative Review cycle,
following implementation of the added sugars limits.
Final Rule
This final rule codifies the proposed added sugars limits in the
school lunch and breakfast programs, as follows:
Product-based limits: By SY 2025-2026, schools must
implement quantitative limits for breakfast cereals, yogurt, and
flavored milks. As explained below, this rule does not finalize the
proposed product-based limit for grain-based desserts at breakfast. The
product-based limits that are finalized in this rule are as follows:
Breakfast cereals are limited to no more than 6 grams of
added sugars per dry ounce.
Yogurt is limited to no more than 12 grams of added sugars
per 6 ounces (2 grams of added sugars per ounce).
Flavored milk is limited to no more than 10 grams of added
sugars per 8 fluid ounces. Flavored milk sold as a competitive food for
elementary school students will follow the 10 grams of added sugars per
8 fluid ounce limit, while flavored milk sold as a competitive food for
middle and high school students will be limited to 15 grams of added
sugars per 12 fluid ounces.\39\
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\39\ For clarification, the added sugars limit for flavored milk
sold as a competitive food in middle and high schools due to the
larger serving size. The serving size for milk offered as part of a
reimbursable meal is 8 fluid ounces. Milks sold to middle and high
school students as a competitive food may be up to 12 fluid ounces.
Milks sold to elementary school students as a competitive food may
be up to 8 fluid ounces, and so will follow the 10 grams of added
sugars per 8 fluid ounce limit.
---------------------------------------------------------------------------
Weekly dietary limit: By SY 2027-2028, schools must
implement a dietary specification limiting added sugars to less than 10
percent of calories per week in the school lunch and breakfast
programs; this weekly limit will be in addition to the product-based
limits described above.
As proposed, this final rule also updates CACFP total sugar limits
for breakfast cereals and yogurt to align with the product-based added
sugars limits established for NSLP and SBP as stated above. Because
CACFP operates on a fiscal year calendar, these changes must be
implemented by October 1, 2025. For CACFP, the product-based added
sugars limits are as follows:
Breakfast cereals are limited to no more than 6 grams of
added sugars per dry ounce.
Yogurt is limited to no more than 12 grams of added sugars
per 6 ounces (2 grams of added sugars per ounce).
The existing total sugars limits for breakfast cereals and yogurt
in CACFP will remain in place until October 1, 2025, when the new added
sugars limits must be implemented. With State agency approval, CACFP
operators may choose to implement the added sugars limits for breakfast
cereals and yogurt early.
Two-Step Approach To Reduce Added Sugars in School Meals
USDA is committed to improving the nutritional quality of school
meals by establishing requirements that align with the goals of the
most recent Dietary Guidelines. USDA also acknowledges stakeholders'
concerns about added sugars in school meals and the harmful effects on
children's health. The two-step approach to reducing added sugars
finalized in this rule is expected to set schools up for success by
gradually decreasing added sugars over the next several years. USDA
acknowledges that, as noted in public comments, program operators need
sufficient time to prepare and plan menus to meet the new added sugars
limits. By first phasing in the product-specific limits for breakfast
cereals, yogurt, and flavored milk, USDA expects that schools will be
better positioned to successfully meet the weekly limits for added
sugars, which will take effect two school years after the effective
date of the product-based limits.
USDA intends for the product-based limits for breakfast cereals,
yogurt, and flavored milk to have a meaningful impact on the added
sugars offered in school meals. However, USDA recognizes that there are
other foods offered in school meals that contribute to children's
overall intake of added sugars, which makes the weekly dietary limit an
important second step to align school meals more closely with the goals
of the Dietary Guidelines. For example, USDA expects that added sugars
in condiments and toppings will be addressed through the weekly added
sugars limit, upon implementation. While USDA appreciates public
comments recommending product-based limits for condiments and toppings,
such limits were not included in the proposed rule and this final rule
does not establish product-based added
[[Page 31978]]
sugars limits for these items. USDA expects that the overall weekly
limit will help to reduce the amount of added sugars offered in
condiments and toppings. Additionally, although this rule does not
finalize the grain-based dessert limit at breakfast, USDA expects that
schools will select grains with less added sugars to meet the weekly
added sugars limit at breakfast and, as explained below, USDA will
provide resources to support more nutrient-dense choices at breakfast.
USDA is also interested in additional stakeholder input on how to
improve and simplify its grain-based desserts requirements and will
solicit stakeholder input on grain-based desserts in the coming months.
USDA also acknowledges respondent concerns regarding the
palatability of meals with less added sugars and related concerns about
plate waste and student participation. However, USDA expects that
gradually phasing in these requirements will give schools time to
adjust menus and help children gradually adapt to meals with fewer
added sugars over time.
Added Sugars in the Child and Adult Care Food Program
For consistency, this final rule applies the product-based added
sugars limits for breakfast cereals and yogurt to the CACFP. Based on
public comment, USDA has adjusted the implementation date for CACFP to
follow the program calendar, which operates on a fiscal year rather
than a school year. Effective October 1, 2025, the added sugars limits
will replace the current total sugar limits for breakfast cereals and
yogurt in CACFP. The existing total sugars limits for breakfast cereals
and yogurt in CACFP will remain in place until October 1, 2025, when
the new added sugars limits take effect. However, with State agency
approval, CACFP operators may choose to implement the added sugars
limits for breakfast cereals and yogurt early.
As mentioned in public comments, CACFP operators have successfully
implemented product-based sugar limits, and this rule updates these
limits from total sugars to added sugars based on Dietary Guidelines
recommendations. Although some public comments recommended continuing
with total sugars limits, that approach would not be consistent with
the Dietary Guidelines recommendations. And, as noted, added sugars
information is now available on the Nutrition Facts label.\40\ USDA
recognizes that many stakeholders would like more consistent
requirements across child nutrition programs; this final rule supports
USDA's efforts to better align program requirements. Additionally, in
response to public comments, USDA clarifies that the per-ounce limit
for yogurt will be 2 grams of added sugars. While this clarification
applies to NSLP, SBP, and CACFP, it is most relevant to CACFP, where
smaller portions may be offered to younger participants and operators
will more often need to assess compliance with the added sugars limit
in serving sizes that are smaller than 6 ounces.
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\40\ Food Labeling: Revision of the Nutrition and Supplement
Facts Labels (81 FR 33741, May 27, 2016). Available at: https://www.federalregister.gov/documents/2016/05/27/2016-11867/food-labeling-revision-of-the-nutrition-and-supplement-facts-labels. See
also: 21 CFR 101.9(c)(6)(iii).
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CACFP operators provide vital nutrition that contributes to the
wellness of child and adult participants. USDA recognizes and
appreciates the important role CACFP operators play in helping child
and adult participants develop and sustain healthy habits in all stages
of life. USDA is committed to ensuring that CACFP operators have the
technical assistance and resources they need to be successful,
including implementing the changes in this rule.
Alignment With WIC Food Package Standards
In April 2024, USDA finalized revisions to the WIC food packages to
incorporate recommendations from the National Academies of Science,
Engineering, and Medicine (NASEM) in its 2017 scientific report,
``Review of WIC Food Packages: Improving Balance and Choice,'' and to
align the food packages with the Dietary Guidelines for Americans,
2020-2025. The WIC final rule, Special Supplemental Nutrition Program
for Women, Infants and Children (WIC): Revisions in the WIC Food
Packages,\41\ updated limits on total sugars, consistent with
recommendations in the NASEM report. This included establishing limits
on added sugars in breakfast cereals and yogurt that are consistent
with the limits in this final rule. CACFP operators may use any State's
WIC list to identify breakfast cereals and yogurt that may be offered
in CACFP. Both the WIC final rule and this final rule share the common
goal of reducing added sugars intake among child and adult participants
and promoting healthy dietary patterns. This cross-program alignment of
product-based limits for breakfast cereals and yogurt responds to
public comments that highlighted the benefits of allowing use of the
WIC list in CACFP by allowing CACFP providers to use the WIC list to
identify allowable breakfast cereals and yogurt. It also responds to
public feedback requesting that USDA streamline requirements across its
nutrition assistance programs.
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\41\ Special Supplemental Nutrition Program for Women, Infants,
and Children (WIC): Revisions in the WIC Food Packages (April 2024).
Available at: https://www.fns.usda.gov/wic/fr-041824.
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Additional Feedback Received in Public Comments
USDA appreciates public comments on alternative approaches for
reducing added sugars in school meals. A few respondents suggested a
stepwise approach for the weekly added sugars limit; for example, by
starting with 15 percent and then moving to a 10 percent weekly limit.
The intent of the product-based limit is to provide schools with a path
toward reaching the 10 percent weekly limit. Other respondents
recommended a weekly limit below 10 percent; however, a weekly limit
below 10 percent would go beyond recommendations in the current Dietary
Guidelines. In this final rule, USDA maintains the proposed weekly
added sugars limit of 10 percent of calories per week, averaged over
the week for lunch and breakfast programs, respectively. In public
comments, some respondents recommended combining lunch and breakfast
menus under the weekly limit. However, because other school meal
pattern requirements (including the other dietary specifications for
calories, saturated fat, and sodium) currently apply by program, USDA
does not view this as an operationally feasible suggestion. Regarding
exemption for certain foods from the weekly limit, USDA has determined
that establishing exemptions may impose unintended burden and
challenges in calculating and monitoring dietary specifications for the
entire menu. This final rule does not exempt any foods from the weekly
added sugars limit for school lunch or breakfast. USDA also
acknowledges comments that recommended adjusting other meal pattern
requirements, such as the calorie limits, as part of this change.
However, USDA did not propose changes to the calorie limits in school
meals and this final rule does not make changes to the calorie limits
for school meals.
Product-Based Limits for Breakfast Cereals, Yogurt, and Flavored Milk
USDA received hundreds of comments regarding the product-based
limits for breakfast cereals, yogurt, and flavored milks. For example,
some respondents recommended increasing the product-based added sugars
limit for breakfast cereals and raised concerns
[[Page 31979]]
about the availability of breakfast cereals that meet the proposed
limit that children enjoy. Similarly, USDA acknowledges respondent
concerns about product availability and the palatability of yogurt and
flavored milks that meet the product-based added sugars limits.
However, USDA agrees with respondents who stated that the added sugars
limits are realistic and that many breakfast cereals, yogurts, and
flavored milks that meet the final limits are or will be available to
schools. As discussed in the Regulatory Impact Analysis, based on data
that USDA collected in 2022, 50 percent of breakfast cereals and 57
percent of yogurts already met the added sugars limits finalized in
this rule in 2022.\42\ Regarding flavored milk, as noted in public
comments, the milk industry has committed to reducing added sugars in
flavored milk to levels that meet the limits finalized in this
rule.\43\ USDA appreciates public comments from industry that noted
significant progress in product reformulation and a variety of products
available in the market that already meet the product-based limits
finalized in this rule. Additionally, the gradual, phased-in approach
used in this rule will provide schools time to implement the changes.
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\42\ USDA Food and Nutrition Service, Office of Policy Support
data collection of nutrition label information from major cereal and
yogurt manufacturer K-12 and food service catalogs. Data were
collected on 191 total cereal products and 110 total yogurt
products.
\43\ In April 2023, the International Dairy Foods Association
announced its ``Healthy School Milk Commitment.'' According to a
press release from the International Dairy Foods Association,
``[b]eginning with the 2025-2026 school year, 37 school milk
processors representing more than 90% of the school milk volume in
the United States commit to provide healthy, nutritious school milk
options with no more than 10 grams of added sugar per 8 fluid ounce
serving.'' See: International Dairy Foods Association. IDFA
Announces `Healthy School Milk Commitment' to Provide Nutritious
Milk with Less Added Sugar for Students in Public Schools,
Surpassing USDA Standards. April 5, 2023. Available at: https://www.idfa.org/news/idfa-announces-healthy-school-milk-commitment-to-provide-nutritious-milk-with-less-added-sugar-for-students-in-public-schools-surpassing-usda-standards.
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Product-Based Limit for Grain-Based Desserts at Breakfast [Not
Finalized]
As noted above, USDA is not finalizing the proposed limit for
grain-based desserts at breakfast. Public comments raised concerns
about potential negative impacts of the proposal to the SBP, especially
to alternative breakfasts that often contain grab-and-go friendly
items, including grain-based desserts such as breakfast bars and
toaster pastries. Respondents were concerned about the availability and
student acceptance of alternative items that can readily be served in
grab-and-go and other alternative breakfast models. In addition, many
respondents raised questions about the definition of grain-based
desserts as currently used in the NSLP and CACFP \44\ or suggested
alternative approaches to current requirements for those programs.
Under current requirements, which define grain-based desserts by
product type, some grain items that are not classified as grain-based
desserts are higher in added sugars than items that are classified as
grain-based desserts. Some respondents suggested that rather than
defining grain-based desserts by product type, USDA should instead
define grain-based desserts based on the amount of added sugars in
specific products. For these reasons, many respondents recommended that
USDA reconsider the proposal. Therefore, in response to stakeholder
input, USDA is not finalizing the grain-based dessert limit for school
breakfast.
---------------------------------------------------------------------------
\44\ For NSLP, according to 7 CFR 210.10(c)(2)(iii)(C)
(previously 7 CFR 210.10(c)(2)(iv)(C), schools may count up to two
ounce equivalents of grain-based desserts per week toward meeting
the grains requirement at school lunch. For CACFP, according to 7
CFR 226.20(a)(4)(iii), grain-based desserts do not count toward
meeting the grains requirement. The grain-based dessert requirements
for NSLP and CACFP remain in effect under this final rule.
---------------------------------------------------------------------------
USDA is committed to supporting alternative breakfast models, such
as breakfast in the classroom and grab-and-go breakfast, which support
student participation \45\ by making school breakfast more accessible.
USDA also appreciates concerns that the current definition of ``grain-
based dessert'' does not target grain products high in added sugar as
effectively as possible. Although some respondents raised concerns
about product-based limits for breakfast cereals, yogurt, and flavored
milk, those comments did not cite operational constraints for
alternative breakfast models under the proposed limits. Further, as
detailed above, USDA has determined adequate products will be available
to meet the product-based limits for breakfast cereals, yogurt, and
flavored milk finalized in this rule upon implementation.
---------------------------------------------------------------------------
\45\ Amelie A. Hecht, Deborah A. Olarte, Gabriella M.
McLoughlin, Juliana F.W. Cohen, Strategies to Increase Student
Participation in School Meals in the United States: A Systematic
Review, Journal of the Academy of Nutrition and Dietetics, Volume
123, Issue 7, 2023, Pages 1075-1096.e1, ISSN 2212-2672, https://doi.org/10.1016/j.jand.2023.02.016. Available at: https://www.sciencedirect.com/science/article/pii/S221226722300103X.
---------------------------------------------------------------------------
USDA recognizes that reducing grain items that are high in added
sugars is one important strategy to support the phased-in
implementation of the weekly added sugars limit. USDA will continue to
support implementation of alternative breakfast models by highlighting
popular grain items that are low in added sugars and that are grab-and-
go friendly. Schools may also consider offering savory grab-and-go
breakfast items, such as breakfast sandwiches and wraps, to reduce the
overall added sugars content of school breakfasts. As discussed in
Section 6: Meats/Meat Alternates at Breakfast, this rule removes the
minimum grains requirement at breakfast, making it easier for schools
to offer meats/meat alternates at breakfast. In the absence of a grain-
based dessert limit at breakfast, schools may need additional support
and guidance to reduce added sugars at breakfast and meet the weekly
limit upon implementation in SY 2027-2028.
As discussed below, USDA will provide technical assistance to
ensure that schools have the resources they need to reduce added sugars
at breakfast, including meeting the weekly added sugars limit at
breakfast upon implementation. USDA also seeks to support industry in
producing breakfast grains which can be part of menus under the weekly
added sugars limit. The Department will provide voluntary guideposts
for schools and industry to use to assist them in transitioning to the
weekly added sugars limits in SY 2027-2028. This will include resources
that schools may use to identify grain items that are low in added
sugars.
USDA is very interested in and will solicit additional stakeholder
input on improving guidance around grain-based breakfast items. As part
of this effort, USDA will seek stakeholder input on the current grain-
based desserts requirements, alternative approaches to defining and
identifying grains that are high in added sugars, and other creative
ideas for how to address grain-based desserts in the child nutrition
programs. USDA looks forward to receiving stakeholder feedback on this
topic in the coming months.
Sweeteners
This final rule is focused on limits for added sugars, not other
sweeteners used as sugar substitutes or sugar alternatives. USDA
acknowledges respondent concerns regarding sweeteners in child
nutrition programs, referred to in public comments in a variety of
ways, including ``artificial sweeteners,'' ``non-nutritive
sweeteners,'' and ``sugar substitutes.'' \46\
[[Page 31980]]
Sweeteners, like all other ingredients added to food in the U.S. food
supply, must be safe for consumption under the Federal Food, Drug and
Cosmetic Act.\47\ FDA determines if food additives, such as sweeteners,
are safe for their intended use. FDA has approved six sweeteners as
food additives through an extensive evidence-based research
process.\48\ In addition to the six sweeteners approved as food
additives, there are three additional sweeteners that are Generally
Recognized as Safe (GRAS). USDA relies on FDA expertise to safeguard
the food supply because FDA is the Federal agency responsible for
assessing the safety of food additives, food ingredients, and
sweeteners, including artificial sweeteners and nonnutritive
sweeteners. Therefore, under this final rule, there are no restrictions
on sweeteners in school meals, such as the use of sugar substitutes and
nonnutritive sweeteners; this approach aligns with current FDA guidance
for sweeteners. However, at the local level, schools or districts may
opt to limit or remove sweeteners from their school lunch and breakfast
menus, which USDA recognizes that some localities have chosen to do.
Further, in response to stakeholder concerns about sweeteners, in
upcoming studies, USDA will include questions regarding school policies
relating to the use of sweeteners in school meals and will continue to
monitor FDA research and guidance on this issue.
---------------------------------------------------------------------------
\46\ Although respondents used a variety of terms in public
comments, USDA will refer to ``sweeteners'' in this final rule,
consistent with FDA terminology. U.S. Food and Drug Administration,
How Sweet It Is: All About Sweeteners, June 9, 2023. Available at:
https://www.fda.gov/consumers/consumer-updates/how-sweet-it-all-about-sweeteners.
\47\ U.S. Food and Drug Administration, Aspartame and Other
Sweeteners in Food, July 14, 2023. Available at: https://www.fda.gov/food/food-additives-petitions/aspartame-and-other-sweeteners-food.
\48\ Amelie A. Hecht, Deborah A. Olarte, Gabriella M.
McLoughlin, Juliana F.W. Cohen, Strategies to Increase Student
Participation in School Meals in the United States: A Systematic
Review, Journal of the Academy of Nutrition and Dietetics, Volume
123, Issue 7, 2023, Pages 1075-1096.e1, ISSN 2212-2672, https://doi.org/10.1016/j.jand.2023.02.016. Available at: https://www.sciencedirect.com/science/article/pii/S221226722300103X.
---------------------------------------------------------------------------
Ongoing Support
USDA is committed to ensuring that child nutrition program
operators have ongoing support and will provide additional technical
assistance and resources to assist schools and child care institutions
and facilities as they prepare to implement and monitor new or updated
requirements. USDA appreciates public comments requesting guidance and
support for monitoring these changes and will update the nutrient
analysis software approved for use in Administrative Reviews so that it
includes a dietary specification for added sugars. As noted above, USDA
will provide resources to support schools and industry in transitioning
to the weekly added sugars limit in SY 2027-2028 and will make these
resources available in time to support procurement for SY 2025-2026.
USDA has already highlighted strategies that schools can use to reduce
added sugars in Best Practices for Reducing Added Sugars at School
Breakfast.\49\ For example, schools can:
---------------------------------------------------------------------------
\49\ U.S. Department of Agriculture, Best Practices for Reducing
Added Sugars at School Breakfast, August 4, 2022. Available at:
https://www.fns.usda.gov/tn/best-practices-reducing-added-sugars-school-breakfast.
---------------------------------------------------------------------------
Reduce how often high-sugar foods and beverages are
offered during the week.
Use fruit to sweeten smoothies and yogurt instead of added
sugars.
Use cinnamon, vanilla, and other spices or extracts to
enhance recipes with less added sugars.
In public comments, many respondents suggested that meats/meat
alternates be allowed in place of grains to help reduce added sugars in
breakfasts. As discussed in Section 6: Meats/Meat Alternates at
Breakfast, schools may consider this option as a strategy to reduce
added sugars at breakfast, since some grain foods commonly offered in
school breakfasts tend to be higher in added sugars. Schools now have
the option to offer grains, meats/meat alternates, or a combination of
both, to meet the combined food component requirement in the SBP. This
change gives program operators greater flexibility in menu planning and
increases the variety of food items that can be served at school
breakfast, helping to address respondent concerns about meeting the
added sugars limits at breakfast. Local educational agencies may also
consider updating their local school wellness policies with strategies
to reduce added sugars in school meals and snacks. USDA also commends
industry efforts to reduce added sugars in their products, including in
flavored milk. For example, USDA understands that flavored milk
processors have already reduced the average amount of added sugars per
serving of flavored milk since announcing their ``Healthy School Milk
Commitment'' in April 2023.\50\ As suggested by comments, support from
industry is crucial to schools' efforts to continue to offer foods that
are popular with children and also fit within the product-based and
weekly limits phased in under this rulemaking.
---------------------------------------------------------------------------
\50\ According to the International Dairy Foods Association,
``When the Commitment was announced in April 2023, flavored milk
products offered in schools contained an average of 8.2 grams of
added sugar per serving. By July 2023, the average had fallen to 7.6
grams of added sugar per serving.'' See: International Dairy Foods
Association, School Milk Is Critical to Child Nutrition--School Year
2023-2024. Available at: https://www.idfa.org/wordpress/wp-content/uploads/2023/09/Back-to-School-Milk-Fact-Sheet-2023_2024.pdf.
---------------------------------------------------------------------------
USDA acknowledges public comments that requested increased funding
to support implementation of the added sugars limits. USDA does not
have authority to increase the Federal reimbursement rates for school
meals.\51\ However, USDA launched the HMI Initiative to improve the
nutritional quality of school meals through food systems
transformation, recognition, and technical assistance; the generation
and sharing of innovative ideas and tested practices; and grants. As
part of a cooperative agreement to develop and implement USDA's HMI
Initiative, AFHK is offering Recognition Awards for school food
authorities, including the Breakfast Trailblazer Recognition Award,
that will recognize school food authorities who implement specific
strategies to reduce added sugars in school breakfast menus, implement
an alternative meal service delivery model for breakfast, and use
student engagement techniques and/or culinary techniques to prepare
breakfasts that students enjoy. Public comments noted the importance of
student preferences and participation. Developing healthy dietary
patterns and taste preferences begins at a young age, and gradually
decreasing added sugars in school meals can contribute to developing
student preferences for more nutrient-dense foods, with less added
sugars, as recommended by the Dietary Guidelines. As part of the HMI
Initiative, AFHK will host Healthy Meals Summits, where award
recipients and grantees will share best practices and strategies for
sustaining their nutritional achievements, including successful
strategies to reduce added sugars. The summits will celebrate and
showcase creative strategies for serving healthy, appealing meals and
the best practices will serve as a blueprint for school food
authorities nationwide. USDA will also share strategies and success
stories for reducing added sugars in its communications materials and
will provide guidance and resources to schools working to reduce
[[Page 31981]]
added sugars in school meals in the months ahead.
---------------------------------------------------------------------------
\51\ The annual payments and rates adjustments for the National
School Lunch and School Breakfast Programs reflect changes in the
Food Away From Home series of the Consumer Price Index for All Urban
Consumers. See: U.S. Department of Agriculture. Rates of
Reimbursement. Available at: https://www.fns.usda.gov/cn/rates-reimbursement.
---------------------------------------------------------------------------
Assessing Impact of Added Sugars Limits
USDA recognizes the importance of monitoring progress toward the
new added sugars limits and assessing the effectiveness of the two-step
approach. USDA has a long history of examining the nutritional quality
of school meals through studies such as the School Nutrition and Meal
Cost Study and the School Nutrition Dietary Assessment Study series.
The 2024-2025 National School Foods Study will incorporate added sugars
into this assessment, which is based on an extensive menu survey,
designed to determine the food and nutrient content of school meals and
afterschool snacks, examine compliance with nutrition requirements, and
understand the characteristics of foods and beverages in reimbursable
meals.
These studies also assess actual student dietary intake and overall
diet quality through 24-hour dietary recall interviews. The 2024-2025
study will establish a ``baseline year'' (SY 2024-2025) for examining
the impact of the added sugars and sodium limits included in this
rulemaking.
In accordance with its commitment to regularly monitor how
consistent school meals are with the goals of the Dietary Guidelines,
USDA conducts the School Nutrition and Meal Cost Study on a five-year
cycle, which will provide another comprehensive assessment in SY 2029-
2030, after both the updated sodium limits and added sugars limits have
been fully implemented.
However, to monitor progress and provide data on the effectiveness
of product-based limits as a step toward meeting the overall weekly
added sugars limit, USDA will invest in an additional menu assessment
in SY 2026-2027, between the two School Nutrition and Meal Cost Study
cycles. This nationally representative survey will focus on the foods
and beverages that make up reimbursable meals and allow USDA to examine
the effect of the product-based added sugars limits, which will take
effect in SY 2025-2026. Additionally, this survey will allow USDA to
estimate both added sugars and sodium content of reimbursable school
meals.
Together these studies will provide USDA with critical evidence
about rule implementation, effects, and potential barriers and help
monitor changes in nutrient content of foods over time. This data will
provide invaluable insight into school meal nutrient composition and
student dietary outcomes. In addition, USDA will continue current
practice of using existing data sources--such as the National Health
and Nutrition Examination Survey--to periodically examine other
outcomes, including the relationship between estimated school meal
program participation, diet quality, indicators of nutrition and
health, food consumption patterns, and nutrient intakes. This in turn
can inform future policy and rulemaking.
Accordingly, this final rule codifies the product-based added
sugars limits for breakfast cereals, yogurt, and flavored milk, and
codifies the weekly dietary specification for added sugars in NSLP and
SBP regulations found at 7 CFR 210.10(b)(2)(iii), (c), (d)(1)(iii),
(f)(3), and (h) and 220.8(b)(2)(iii), (c), (d), and (f)(3). These
amendments must be implemented by July 1, 2025, except for the weekly
dietary specification, which must be implemented by July 1, 2027. This
final rule also replaces total sugar limits for breakfast cereals and
yogurt with added sugars limits in CACFP regulations found at 7 CFR
226.20(a)(4)(ii), (a)(5)(iii)(B), (b)(5), and (c). The CACFP amendments
must be implemented by October 1, 2025.
Section 3: Milk
This section includes the following sub-sections:
Section 3A discusses requirements for flavored milk in the
NSLP, SMP, SBP, and CACFP, and for milk sold [agrave] la carte (i.e.,
as a Smart Snack in School).
Section 3B provides an overview of comments that USDA
received in response to the proposed rule's request for input on fluid
milk substitutes in the child nutrition programs.
Section 3C discusses the nutrient requirements for fluid
milk substitutes.
Section 3A: Flavored Milk
Current Requirement
The National School Lunch Act (42 U.S.C. 1758(a)(2)(i)) requires
schools to offer students a variety of fluid milk at lunch; such milk
must be consistent with the most recent Dietary Guidelines. The Child
Nutrition Act (42 U.S.C. 1773(e)(1)(A)) requires school breakfasts to
meet the same terms and conditions set forth for school lunches in the
National School Lunch Act (42 U.S.C. 1758), including the requirements
for fluid milk. Current regulations at 7 CFR 210.10(d)(1)(i), 220.8(d),
and 210.11(m) allow schools to offer fat-free and low-fat (1 percent
fat) milk, flavored and unflavored, in reimbursable school lunches and
breakfasts, and for sale [agrave] la carte. The current regulations
also require that unflavored milk be offered at each school meal
service. Fat-free and low-fat milk, flavored and unflavored, may also
be offered to participants ages 6 and older in the SMP and CACFP (7 CFR
215.7a(a) and 226.20(a)(1)(iii)). Lactose-free and reduced-lactose milk
meet the meal pattern requirements for fluid milk (7 CFR
210.10(d)(1)(i), 215.7a(a), 220.8(d), and 226.20(a)(1)). The current
milk requirements took effect on July 1, 2022.
Proposed Rule
USDA proposed the following two alternatives for milk requirements
in the school lunch and breakfast programs and invited public comment
on both:
Alternative A: Allow flavored milk (fat-free and low-fat)
at school lunch and breakfast for high school children only, effective
SY 2025-2026. Under this alternative, USDA proposed that children in
grades K-8 would be limited to a variety of unflavored milk. USDA also
requested public input on whether to allow flavored milk for children
in grades 6-8 as well as high school children (grades 9-12). Children
in grades K-5 would again be limited to a variety of unflavored milk.
Under both Alternative A scenarios, flavored milk would be subject to
the new proposed added sugars limit (10 grams of added sugars per 8
fluid ounces).
Alternative B: Continue to allow all K-12 schools to offer
fat-free and low-fat milk, flavored and unflavored, with the new
proposed added sugars limit for flavored milk (10 grams of added sugars
per 8 fluid ounces).
USDA also proposed a minor technical change to the regulatory text
for milk sold [agrave] la carte. Instead of repeating the allowable
milk types in 7 CFR 210.11(m), which describes the beverages that
schools can sell [agrave] la carte, USDA proposed to cross-reference 7
CFR 210.10(d). This change was intended to clarify that the NSLP milk
requirements apply to milk sold [agrave] la carte.
Public Comments
USDA received over 1,600 comments on flavored milk, including
almost 600 unique comments. Of these, over 1,500 supported flavored
milk, including about 375 unique comments. About 70 opposed flavored
milk, including about 50 unique comments. Additionally, specific
comment counts regarding Alternative A and Alternative B proposals are
described in more detail below. A wide range of stakeholders, including
State agencies, school nutrition professionals, advocacy groups,
industry respondents, professional associations, dietitians, parents,
and students commented on the proposed milk alternatives. At a high
[[Page 31982]]
level, respondents provided the following feedback on flavored milk:
Flavored milk is the leading source of added sugars in
school meals.
Offering flavored milk, which is a more palatable option
for some children, improves children's milk consumption and reduces
milk waste.
Milk is an important source of calcium, protein, and other
micronutrients.
USDA should consider operational constraints, such as a
lack of storage space for flavored milk, when determining which milk
alternative to finalize.
More detailed respondent feedback, including respondent input on
the two alternatives, is discussed below.
Alternative A: Allow Flavored Milk for Older Students Only
Fifty-five respondents, including 36 unique comments, representing
school nutrition professionals, parents, and advocacy groups, supported
Alternative A. A school nutrition professional suggested that
Alternative A would help transition students away from flavored milk
and reduce their consumption of added sugars. This respondent suggested
that after students who are currently in grades K-5 transition to
middle and high school, USDA could apply the limit to older children,
too. A parent agreed, asserting that water and unflavored milk are the
only beverages that young children should consume. A school nutrition
professional stated that, although flavored milk is the most popular
choice, the amount of added sugars in flavored milk is ``unnecessary
for our student's diets.'' This respondent argued that students are
already exposed to too much added sugars outside of school meals.
Another Alternative A proponent stated that flavored milk should be a
treat for younger students, not an everyday choice. An advocacy group
noted that flavored milk is a top contributor to added sugars intake
and that younger children overconsume added sugars at a higher rate
than older children.
Some respondents opposed flavored milk in school meals entirely.
Several advocacy groups recommended that USDA limit flavored milk
options for all grade levels. Many respondents urged USDA to limit
flavored milk to the greatest extent possible, citing that nutrients
found in milk are also found in other foods that are lower in added
sugars. An individual argued that flavored milk should not be served in
school meals because the added sugars ``cancels out any potential
benefits of consuming milk.'' A school district opposed flavored milk
and mentioned that flavored milk is not offered at any of their
schools. An advocacy group urged USDA to prohibit flavored milk in
school meals due to the harmful public health impacts of added sugars
consumption.
A few respondents addressed concerns about Alternative A's
potential impact on children's milk consumption. An advocacy group
cited research that found a ``modest decrease'' in student milk
consumption when flavored milk was removed from schools but noted that
the same study found ``no significant reductions in average per-student
intake of calcium, protein, or vitamin D from milk.'' The respondent
added that the same study found a decline in added sugars intake from
removing flavored milk. However, this advocacy group recommended that
USDA periodically monitor milk consumption and intake of milk-related
nutrients if Alternative A is implemented.
In addition to general feedback, USDA requested public input on the
following questions related to Alternative A:
Do respondents that support Alternative A have specific
input on whether USDA should limit flavored milk to high schools only
(grades 9-12) or to middle schools and high schools only (grades 6-12)?
If Alternative A is finalized with restrictions on
flavored milk for grades K-8 or K-5 in NSLP and SBP, should USDA also
pursue a similar change in SMP and CACFP?
Are there any special considerations USDA should keep in
mind for SMP and CACFP operators, given the differences in these
programs compared to school meal program operators?
In response to the first question, one industry respondent
supported limiting grades K-8 to unflavored milks only, if this change
is accompanied by a reduction in minimum required calories or an
increase in program funding. This respondent explained that when
omitting flavored milk, menus are significantly higher in cost due to
adding calories from other food groups to meet the required minimum
calories. A school district and a dietitian each supported removing
flavored milk from the school meal programs entirely but stated that if
USDA maintains flavored milk for some students, it should be limited to
grades 9-12 only. A few advocacy groups also supported limiting
elementary and middle schools to offering unflavored milk only. A few
other advocacy groups supported allowing flavored milk for grades 6-12
and limiting grades K-5 to unflavored milk only; one suggested that
this approach would give middle schools students, who are old enough to
make healthy food choices, the option to choose flavored or unflavored
milk.
Regarding the second question, over 100 respondents, including 34
unique comments, addressed whether USDA should pursue a similar change
in SMP and CACFP, if Alternative A is finalized for school meals. One
CACFP sponsoring organization did not support further restricting
flavored milk options in CACFP. A few advocacy groups representing
CACFP sponsoring organizations stated they ``categorically oppose''
Alternative A and that ``USDA should not pursue a similar change in
CACFP.'' Another advocacy group opposed limiting flavored milk to older
children only in the CACFP, asserting that ``acceptance of milk would
decrease'' if flavored milk is not permitted. A State agency also
opposed limiting flavored milk to older children only in the CACFP,
noting that some children participating in the afterschool component of
CACFP engage in physical activities, where flavored milk could be a
suitable recovery beverage. A CACFP sponsoring organization agreed,
suggesting that children who participate in their afterschool care
program prefer flavored milk.
However, a State agency supported implementing similar changes in
SMP and CACFP to support consistency in program requirements, if
Alternative A is finalized for school meals. An individual also
supported similar changes in SMP and CACFP, arguing that this would
help reduce added sugars intake and help establish healthy eating
patterns for young children. This respondent stated that special
considerations for these programs are ``unnecessary.'' A school
district also supported similar changes in SMP and CACFP ``for
consistent messaging and implementation.''
Alternative B: Continue To Allow Flavored Milk for All K-12 Students
About 800 respondents, including 180 unique comments, including
State agencies, school nutrition professionals, industry respondents,
and individuals, supported Alternative B. Many cited children's
preference for flavored milk as a key reason for supporting Alternative
B. For example, a school district shared that they serve 90 percent
flavored milk and 10 percent unflavored milk, and a dietitian asserted
that 95 percent of the children at their school drink flavored milk and
the children ``won't drink milk anymore'' if they only offer unflavored
milk. A school food service professional supported Alternative B
because a
[[Page 31983]]
majority of the milk they purchase (97 percent) is flavored milk and
they would ``rather students take some form of milk than none at all.''
Numerous other respondents agreed, claiming that flavored milk is
associated with higher milk consumption and student participation. One
respondent emphasized the importance of allowing choice and teaching
students how to consume all foods and beverages in moderation.
A national organization representing tens of thousands of school
nutrition professionals supported Alternative B, acknowledging that
``milk processers have significantly reduced added sugar[s]'' in
flavored milk served in schools. A school nutrition professional, a
parent, and other respondents also recognized the importance of
reducing added sugars, but maintained that student participation should
be a priority; thus, these respondents supported Alternative B.
Respondents also noted that flavored milk is an important source of
nutrients such as calcium and protein. A dietitian asserted that a
small amount of added sugars in milk helps students receive the
nutritional benefits of milk. One respondent claimed that children not
drinking milk is more ``detrimental to [student] health than added
sugars in flavored milk,'' and therefore supported continuing to allow
flavored milk for all K-12 students. Another respondent supported
lowering added sugars in flavored milks, but not restricting flavored
milks. Respondents also stated that restricting flavored milk may cause
students to consume other beverages, including sugary beverages like
soda and energy drinks.
Several respondents that supported Alternative B raised operational
concerns regarding Alternative A. A State agency suggested that many
rural schools have one building and may only have one milk cooler for
grades K-12. The State agency also noted that many schools serve meals
to students across grades in the same meal service (for example, grades
5-7 or grades 7-9) and it would be difficult for students to understand
if one grade can have flavored milk and others cannot. Similarly,
another State agency mentioned that some of their schools have grades
6-12 in one building, and ``changing out the milk adds one more task to
a busy lunch period.'' This respondent added that some schools do not
have extra refrigeration space to remove flavored milk from their milk
cooler during the meal service. A third State agency also noted that
schools in their State have many unique grade configurations, including
grades K-6, K-12, and 7-12. This State agency noted that it would be
``very burdensome'' for schools to move milk in and out of coolers
between meal services for different grades, and that the challenges of
implementing Alternative A would be even more difficult when different
grades are served during the same meal periods.
An individual noted that implementing Alternative A could be
difficult for school employees, who would be responsible for explaining
the change to families. A dietitian agreed, suggesting that Alternative
A would send a ``confusing message.'' A State agency cited concerns
about supply chain issues and prices, arguing that schools already have
limited choices, and further restrictions would negatively impact price
and availability. A school district raised purchasing concerns, noting
that purchasing for a large district is ``complicated'' and that
Alternative A could create more confusion for vendors. A State agency
suggested Alternative A would increase monitoring requirements. A
different State agency raised similar concerns, especially when
multiple grades share meal services. For example, this State agency
noted that differing milk requirements by grade level could create
challenges during an Administrative Review, as a reviewer would have to
inquire about a student's grade level when they are passing through the
lunch line, to ensure the student received a compliant milk.
Other Comments on Flavored Milk
Some respondents offered their own alternatives or suggested
changes to the milk requirements. For example, instead of finalizing
Alternative A, several respondents suggested limiting flavored milk to
lunch only and requiring unflavored milk at breakfast. One respondent
supported Alternative A, but for a different approach, suggested
allowing flavored milk only once per week for grades 9-12. A few
respondents, including an advocacy group and school districts,
recommended that USDA allow schools to choose which alternative to
implement.
Other respondents encouraged USDA to expand milk options beyond
fat-free and low-fat milk. For example, one school district suggested
USDA allow reduced-fat (2 percent), unflavored milk, arguing that this
option is more palatable for students. One respondent suggested
allowing whole milk in school meals, while another agreed and
specifically suggested allowing whole, flavored milk. A State elected
official encouraged USDA to allow reduced-fat and whole milk options,
asserting that this would increase milk consumption and reduce milk
waste. An industry respondent agreed, stating that they are confident
that the next edition of the Dietary Guidelines will ``look more
favorably on dairy at all fat levels.'' This respondent urged USDA to
allow reduced-fat and whole milk in school meals in anticipation of
what the industry respondent expects in the next Dietary Guidelines. A
dietitian suggested USDA consider ``increasing the allowable fat and
calories'' in milk options.
A State agency urged USDA to reconsider the requirement to provide
a variety of fluid milks (i.e., at least two options) with each meal
service. This respondent argued that the variety requirement leads to a
lot of waste. A school food service professional agreed, suggesting
that providing variety contributes to waste. This respondent stated
that ``skim [milk] is almost never chosen and ends up wasted.'' A
professional organization cautioned that limiting flavored milk options
could potentially effect meal participation and financial viability for
schools. A school district respondent requested that USDA increase
funding for Farm to School and equipment grant projects to support more
locally produced milk and bulk milk dispensers.
Final Rule
This final rule codifies the proposal to maintain the current milk
regulations, with minor technical changes, at 7 CFR 210.10(d),
220.8(d), and 210.11(l).\52\ Under this final rule, all schools
continue to have the option to offer fat-free and low-fat milk,
flavored and unflavored, to K-12 students, and to sell fat-free and
low-fat milk, flavored and unflavored, [agrave] la carte. Consistent
with current requirements, unflavored milk must be offered at each
school breakfast and lunch meal service. SMP and CACFP operators may
continue to offer fat-free and low-fat milk, flavored and unflavored,
to participants ages 6 and older. Additionally, as a reminder, lactose-
free and reduced-lactose milk will continue to meet the meal pattern
requirements for fluid milk under this final rule (7 CFR
210.10(d)(1)(i), 215.7a(a), 220.8(d), and 226.20(a)(1)).
---------------------------------------------------------------------------
\52\ This final rule redesignates the paragraph outlining
requirements for competitive beverages, which was previously 7 CFR
210.11(m) to instead be 7 CFR 210.11(l). Under this final rule, the
requirements for milk sold as a competitive beverage are outlined at
7 CFR 210.11(l).
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Under requirements established in this final rule for added sugars,
as discussed in Section 2: Added Sugars, flavored milk offered to K-12
students
[[Page 31984]]
in the NSLP and SBP and sold to students [agrave] la carte during the
school day must comply with the product-based added sugars limit. Under
this product-based limit requirement, effective SY 2025-2026, flavored
milk must contain no more than 10 grams of added sugars per 8 fluid
ounces, or for flavored milk sold [agrave] la carte in middle and high
schools, 15 grams of added sugars per 12 fluid ounces.
USDA is committed to ensuring that school meals provide children
with nutrient-dense foods and beverages that are consistent with the
goals of the most recent Dietary Guidelines. USDA recognizes that dairy
products, including fluid milk, provide a variety of essential
nutrients--some of which are underconsumed among school-aged children.
The decision to allow flavored, low-fat milk acknowledges concerns
expressed in public comments about declining milk consumption among
school-aged children. It also acknowledges the nutrients that milk
provides (e.g., calcium, vitamin D, and potassium), which remain
nutrients of public health concern for the general U.S. population
because they are underconsumed.\53\ Respondents expressed the
importance of considering milk palatability and acceptability when
establishing long-term requirements.
---------------------------------------------------------------------------
\53\ U.S. Department of Agriculture and U.S. Department of
Health and Human Services. Dietary Guidelines for Americans, 2020-
2025. 9th Edition. December 2020. Page 36. Available at:
DietaryGuidelines.gov.
---------------------------------------------------------------------------
Many stakeholders raised concerns about the potential impact on
milk consumption if flavored milk options were limited under
Alternative A. USDA recognizes that both flavored and unflavored milk
provide children with key nutrients. Flavored milk has been shown to
encourage milk consumption among school-aged children,\54\ and public
comments from school nutrition professionals suggest that children may
select and consume flavored milk more often than unflavored milk. For
example, USDA research from SY 2014-2015 found that about 18 percent of
low-fat, flavored milk offered with school lunch was wasted, compared
to 35 percent of low-fat, unflavored milk.\55\ USDA acknowledges the
benefit of allowing flavored milk to be offered as a strategy to
promote milk consumption, a beverage that provides several nutrients
that are underconsumed during childhood and adolescence. Additionally,
many respondents stated that flavored milk is purchased in higher
quantities compared to unflavored milk, affirming that flavored milk is
a popular choice among students. Offering both flavored and unflavored
varieties of milk as part of a nutritious school meal may help to
minimize the gap between current and recommended intakes of key
nutrients among school-aged children and adolescents. For example, a
USDA study found that K-12 students who participated in NSLP were
significantly more likely to consume milk compared to students who did
not participate.\56\ Thus, the school meal programs remain a
contributing factor in influencing milk consumption among children.
USDA acknowledges the importance of allowing schools the option to
offer milk varieties that children will consume and enjoy.
---------------------------------------------------------------------------
\54\ See page 58. Institute of Medicine, Nutrition Standards for
Foods in Schools: Leading the Way Toward Healthier Youth (``IOM
Report''). Available at: https://nap.nationalacademies.org/catalog/11899/nutrition-standards-for-foods-in-schools-leading-the-way-toward. See also: Mary M. Murphy et al., Drinking Flavored or Plain
Milk is Positively Associated with Nutrient Intake and Is Not
Associated with Adverse Effects on Weight Status in U.S. Children
and Adolescents.
\55\ See Table 5.1: Mean Percentage of Observed Trays including
Specific Foods and Mean Percentage of Observed Foods Wasted in NSLP
Lunches. U.S. Department of Agriculture, Food and Nutrition Service,
Office of Policy Support, School Nutrition and Meal Cost Study,
Final Report Volume 4: Student Participation, Satisfaction, Plate
Waste, and Dietary Intakes, by Mary Kay Fox, Elizabeth Gearan,
Charlotte Cabili, Dallas Dotter, Katherine Niland, Liana Washburn,
Nora Paxton, Lauren Olsho, Lindsay LeClair, and Vinh Tran. Project
Officer: John Endahl. Alexandria, VA: April 2019. Available at:
https://www.fns.usda.gov/school-nutrition-and-meal-cost-study.
\56\ U.S. Department of Agriculture, Food and Nutrition Service,
Office of Policy Support, School Nutrition and Meal Cost Study
Volume 4: Student Participation, Satisfaction, Plate Waste, and
Dietary Intakes Appendix I-P. Available at: https://www.fns.usda.gov/school-nutrition-and-meal-cost-study.
---------------------------------------------------------------------------
USDA recognizes that some stakeholders supported limiting flavored
milk options under Alternative A. USDA appreciates public input on
Alternative A, which would have limited flavored milk offerings to
older students, in grades 9-12 or grades 6-12. Several respondents
acknowledged that Alternative A would help reduce the intake of
beverages with added sugars, especially for younger children. Advocacy
groups and parents also supported this alternative as a way to
transition students from flavored to unflavored milk and reduce their
consumption of added sugars. Conversely, other respondents raised
important concerns about the operational feasibility if Alternative A
were finalized. For example, one school district explained that some
schools serve multiple grades in a single meal service, and students
from grades K-12 may be in the cafeteria at the same time. These
schools may not have the opportunity or capacity to limit milk options
as children from different grade levels pass through the serving lines,
and would have to monitor student milk selections by grade level to
ensure compliance with Alternative A. A few State agencies added that
limiting flavored milk options by grade levels could be challenging to
monitor during Administrative Reviews. USDA acknowledges respondent
concerns that Alternative A could be difficult to implement and
monitor, especially for small schools or schools where students from
different grade levels share the same meal service. Due to the
variability in school size, grade level configurations, storage and
cafeteria space, and overall operations, USDA recognizes that
Alternative A could cause unintended operational and administrative
challenges for both schools and State agencies. USDA appreciates the
important concerns raised by stakeholders, particularly on behalf of
small schools, and considered this input in the final rule.
USDA recognizes that under this final rule, flavored milk will
continue to contribute to added sugars in school meals. However, as
noted in Section 2: Added Sugars, this rulemaking also finalizes a
product-based added sugars limit for flavored milk. By SY 2025-2026,
schools must implement a product-based limit for flavored milk of no
more than 10 grams of added sugars per 8 fluid ounces or, for flavored
milk sold as a competitive food for middle and high schools, 15 grams
of added sugars per 12 fluid ounces. In SY 2027-2028, this rule will
also implement an overall weekly limit for added sugars of less than 10
percent of calories per week. USDA expects that these actions, as well
as the other product-based added sugars limits finalized in this
rulemaking, will support an overall decrease in the added sugars
content of school meals. Additionally, as noted above, this final rule
maintains that NSLP and SBP operators who choose to offer flavored milk
must also offer unflavored milk (fat-free or low-fat) to students in
the same meal service. This requirement ensures that milk variety in
the NSLP and SBP is not limited to flavored milk choices, and that a
nutrient-dense form of milk that is lower in added sugars (i.e.,
unflavored milk) is always available for students to select. USDA is
committed to advancing the nutritional quality of school meals and
reducing added sugars to safeguard children's health and align with the
goals of the most recent Dietary Guidelines.
USDA appreciates respondent feedback on additional approaches to
[[Page 31985]]
reduce added sugars intake from flavored milk. For example, respondents
suggested that schools can limit flavored milk options to lunch only,
procure flavored milks with the least amount of added sugars, or limit
flavored milk to one day per school week. Additionally, there is no
requirement that schools offer flavored milk, and schools may choose to
remove all flavored milk from school meal menus as long as the school
continues to offer a variety of fluid milk. For example, one school
district commented that they have removed flavored milk from their
menus to support school wellness. USDA encourages schools to consider
these strategies to further reduce added sugars in school meals and to
choose options that work best for their unique communities.
Respondents also raised other ideas and suggestions related to milk
requirements. For example, some respondents encouraged USDA to remove
the milk variety requirement. The requirement to offer a variety of
milk options is mandated by statute, and USDA does not have the
authority to change this statutory requirement (42 U.S.C.
1758(a)(2)(i)). Schools have several options to meet the milk variety
requirement, such as offering unflavored fat-free and unflavored low-
fat milk. Schools may also offer lactose-free or reduced-lactose milk
(fat-free or low-fat) to meet the milk variety requirement. Other
respondents recommended USDA allow schools to offer milk with a higher
fat content. While USDA appreciates comments suggesting schools be
allowed to offer reduced fat and whole milk, allowing these milk
options in the school meal programs would not be consistent with the
goals of the most recent Dietary Guidelines as required by the NSLA and
would make it difficult for menu planners to achieve weekly dietary
specifications without exceeding calorie and saturated fat limits.
Statutory requirements state that milk offered in reimbursable school
meals must be consistent with the most recent Dietary Guidelines, and
the Dietary Guidelines, 2020-2025 recommends unsweetened, fat-free or
low-fat milk for school-aged children. Therefore, USDA does not permit
reduced-fat or whole milk in the school meal programs (7 CFR
210.10(d)(1)(i) and 220.8(d)).
As mentioned above, this final rule does not change any milk
requirements in CACFP. Many respondents requested that milk standards
established in school meal programs be consistent with the CACFP. USDA
recognizes that regulatory consistency across programs, a long-time
goal at USDA, facilitates program administration and operation at the
State and local levels, fosters support, and meets stakeholder
expectations.
Accordingly, this final rule makes minor technical changes to the
requirements found in 7 CFR 210.10(d)(1), 210.11(l)(1)(ii), (l)(2)(ii),
and (l)(3)(ii),\57\ and 220.8(d). This final rule continues to allow
NSLP and SBP operators to offer unflavored or flavored, fat-free or
low-fat milk as part of a reimbursable meal and for sale [agrave] la
carte, and to allow flavored, low-fat milk in the SMP and in the CACFP
for participants ages 6 and older. Because this rule finalizes the
current flavored milk requirements, child nutrition program operators
will not need to make changes to their menus to comply with this
provision, beyond those changes described in Section 2: Added Sugars.
---------------------------------------------------------------------------
\57\ This final rule redesignates the paragraph outlining
requirements for competitive beverages, which was previously 7 CFR
210.11(m) to instead be 7 CFR 210.11(l). Under this final rule, the
requirements for milk sold as a competitive beverage are outlined at
7 CFR 210.11(l).
---------------------------------------------------------------------------
Section 3B: Fluid Milk Substitutes: Responses To Request for Input
Current Requirement
As noted in Section 3A: Flavored Milk, the National School Lunch
Act requires fluid milk (cow's milk) to be offered with every school
breakfast and lunch. The statute is also very specific about allowable
fluid milk substitutes for non-disability reasons. To provide a
substitute for cow's milk in the school meal programs, the statute
requires:
That the fluid milk substitute is nutritionally equivalent
to fluid milk and meets nutritional standards established by the
Secretary, which must include fortification of calcium, protein,
vitamin A, and vitamin D to levels found in cow's milk (42 U.S.C.
1758(a)(2)(B)(i)). This requirement also applies to the CACFP (42
U.S.C. 1766(g)(4)(B)).
That the substitution is requested in writing by a medical
authority or the child's parent or legal guardian (42 U.S.C.
1758(a)(2)(B)(ii)). This requirement also applies to CACFP (42 U.S.C.
1766(g)(4)(C)(i)(II)).
That the school notify the State agency if it is providing
fluid milk substitutes for non-disability reasons (42 U.S.C.
1758(a)(2)(B)(ii)).
That the school cover any expenses related to providing
fluid milk substitutes in excess of program reimbursements (42 U.S.C.
1758(a)(2)(B)(iii)). This requirement also applies to institutions or
facilities in the CACFP (42 U.S.C. 1766(g)(4)(D)).
Under current school meal regulations, the statutory requirements
for fluid milk substitutes for non-disability reasons are codified in
two places:
Current 7 CFR 210.10(d)(3) details the nutrition
requirements for fluid milk substitutes for non-disability reasons.
Current 7 CFR 210.10(m)(2)(i) through (iii) detail
additional requirements for fluid milk substitutes for non-disability
reasons, such as the process for requesting a fluid milk substitute on
behalf of a student.
Under current CACFP regulations, the statutory requirements for
fluid milk substitutes are codified at 7 CFR 226.20(g)(3).
As a point of clarification, the statute and program regulations
require schools, institutions, and facilities to provide meal
modifications for participants with a disability that restricts their
diet. Lactose intolerance may be considered a disability. For example,
a child whose digestion is impaired due to lactose intolerance may be
considered a person with a disability who requires a substitution for
cow's milk. In this example, if a student cannot consume cow's milk due
to a disability, and the school food authority obtains a written
medical statement as documentation of the student's disability, the
school is required to provide a substitution for cow's milk. Further,
when providing a meal modification for a participant's disability, the
substitution for cow's milk does not need to meet the non-disability
fluid milk substitute requirements. When providing a meal modification
for a participant's disability, the school, institution, or facility
would review the participant's medical statement which must include a
recommended alternative to accommodate the participant with a
disability,\58\ and the substitution would not be required to meet the
nutrition requirements for non-disability fluid milk substitutes. The
nutrition requirements for non-disability fluid milk substitutes apply
only in non-disability situations. This section will focus on non-
disability fluid milk substitute requirements. Please see Section 14:
Meal Modifications for a more detailed overview of meal modifications
for disability reasons,
[[Page 31986]]
including updates made by this rulemaking.
---------------------------------------------------------------------------
\58\ However, Program operators should not deny or delay a
requested modification because the medical statement does not
provide recommended alternatives. When necessary, Program operators
should work with the participant's parent or guardian to obtain a
supplemental medical statement. See Question 17. U.S. Department of
Agriculture, Accommodating Disabilities in the School Meal Programs:
Guidance and Questions and Answers (Q&As). April 25, 2017. Available
at: https://www.fns.usda.gov/cn/accommodating-disabilities-school-meal-programs-guidance-qas.
---------------------------------------------------------------------------
Proposed Rule
USDA proposed to reorganize the NSLP regulatory text related to
fluid milk substitutes for non-disability reasons to clarify the
requirements for requesting and providing non-disability fluid milk
substitutes in the school meal programs. The rule proposed to move the
NSLP regulatory text explaining the non-disability fluid milk
substitute requirements from paragraph (m) of 7 CFR 210.10--which
currently discusses exceptions and variations allowed in reimbursable
meals--to paragraph (d) of 7 CFR 210.10--which discusses the fluid milk
requirements.
USDA did not propose substantive changes to the requirements for
non-disability fluid milk substitutes. As noted in the proposed rule,
USDA does not have the authority to change the statutory requirements
for non-disability fluid milk substitutes. However, USDA requested
public input on the current fluid milk substitute process, particularly
from parents and guardians with firsthand experience requesting a non-
disability fluid milk substitute on behalf of their child, and program
operators with firsthand experience processing a request.
Public Comments
USDA received 390 comments with feedback about the current fluid
milk substitute process, including 194 unique comments. Several
respondents encouraged USDA to make the process of requesting and
providing fluid milk substitutes less cumbersome so that participants
can more easily access substitutes. These respondents offered a variety
of suggestions for USDA, State agencies, schools, institutions, and
facilities to consider to improve access to fluid milk substitutes. For
example, respondents suggested:
Pursuing a public education campaign to encourage medical
screening of children with possible lactose intolerance and milk
allergies.
Developing informational fliers with basic facts about
lactose intolerance and milk allergies to be posted in school
cafeterias and community clinics and sent home with children.
Improving awareness of the process of requesting fluid
milk substitutes among school food service professionals, parents,
guardians, and students, for example, by:
Clarifying that schools are authorized and encouraged to
provide fluid milk substitutes for non-disability reasons based on a
parent or guardian request.
Issuing guidance with examples of reasons students may
request a non-disability fluid milk substitute, such as following a
vegan diet.
Simplifying the process of requesting a fluid milk
substitute for a participant, for example, by:
Including in registration materials a simple way for
parents and guardians to request a fluid milk substitute, such as a
form with a checkbox.
Providing a model notice and form parents and guardians
may use to request a fluid milk substitute that schools, institutions,
or facilities can post on their website and mail to families.
Providing a list or database of allowable fluid milk
substitutes, such as fortified soy beverages or pea protein milk.
Identifying more shelf-stable fluid milk substitute
options, especially for small schools, institutions, and facilities
where only a few participants request a fluid milk substitute.
Clarifying the differences between meal modifications for
disability reasons and fluid milk substitutes for non-disability
reasons.
Creating a focus group of students, school nutrition
professionals, district officials, and parents and guardians from
across the country to further understand the barriers students face in
accessing fluid milk substitutes.
Providing additional reimbursement or funding to schools
that offer non-disability fluid milk substitutes.
Several respondents had additional feedback on the process of
identifying products that meet the nutrition requirements for fluid
milk substitutes. One advocacy group and a few other respondents
encouraged USDA to modify the process of identifying acceptable fluid
milk substitutes so that program operators can refer to the Nutrition
Facts label, noting that currently, some of the required nutrients are
not always listed on the label. A State agency observed that when a
required nutrient is not included on the Nutrition Facts label, schools
need to contact the manufacturer to obtain nutrition information.
Another State agency and an advocacy group argued that the current
process makes it difficult for program operators to offer fluid milk
substitutes. Further, a State agency suggested the requirement for
micronutrients in fluid milk substitutes is ``excessive,'' suggesting
that requiring substitutes to match the micronutrient profiles of milk
discounts the other nutrition benefits of fluid milk substitutes.
A few respondents offered suggestions that would conflict with the
statutory requirements for fluid milk substitutes, as detailed in the
``Current Requirements'' section above. For example, respondents
suggested that USDA:
Make non-dairy milk options available to all children and
allow more beverages to be offered as fluid milk substitutes.
Remove the requirement for parents, guardians, or a
medical authority to request the fluid milk substitute.
Remove the requirement that school food authorities notify
the State agency if any of its schools choose to offer fluid milk
substitutes for non-disability reasons.
Make broader changes to the meal pattern requirements,
such as removing the requirement to offer fluid milk altogether.
A few respondents offered suggestions related to other proposals
included in the rule. An industry respondent and an advocacy group
suggested that if USDA finalizes added sugars limits for flavored cow's
milk, the same limits should apply to fluid milk substitutes. However,
another respondent recommended that if USDA applies a sugar limit to
fluid milk substitutes, that the limit be for total sugars (rather than
added sugars). One State agency requested clarification about whether
flavored milk restrictions for K-5 or K-8 students would apply to fluid
milk substitutes, if they are finalized for cow's milk. Other
respondents supported and recommended maintaining the current non-
disability fluid milk substitute process. An industry respondent
affirmed that it is important for non-dairy fluid milk substitutes to
provide nutrients similar to cow's milk. An advocacy group agreed,
noting that except for fortified soy beverages and soy yogurt, the
Dietary Guidelines do not include plant-based beverages as part of the
dairy group. This respondent supported maintaining the statutory
requirement that fluid milk substitutes be nutritionally comparable to
cow's milk. Another industry respondent affirmed that USDA developed
the nutritional requirements for fluid milk substitutes ``on the basis
of nutrition science and in accordance with statutory requirements.''
An advocacy group supported the current process for fluid milk
substitutes, arguing that it ``works well for school meal program
operators'' and provides clear guidelines. A State agency agreed,
suggesting that soy milk
[[Page 31987]]
and lactose-free milk are ``readily available'' and are nutritious
options for children.
One industry respondent appeared to misunderstand the types of
fluid milk substitutes that are permitted for non-disability reasons.
This respondent argued that certain non-dairy milks are not
nutritionally equivalent to cow's milk and that students should either
drink cow's milk or water. To clarify, to be allowed as a non-
disability fluid milk substitute, a product must meet nutritional
requirements outlined in regulation. These statutory requirements
ensure that fluid milk substitutes are nutritionally equivalent to
fluid milk (42 U.S.C. 1758(a)(2)(B)(i) and 42 U.S.C. 1766(g)(4)(B)).
Non-dairy milks that do not meet the nutritional requirements outlined
in regulation are not allowable fluid milk substitutes. Another
industry respondent confirmed that most plant-based milks, such as
almond, coconut, and rice milks, do not currently meet the nutrient
standards to qualify as fluid milk substitutes.
Some respondents provided input on lactose-free or reduced-lactose
milk. Low-fat or fat-free lactose-free and reduced-lactose milk are
milk under the statute and program regulations (42 U.S.C.
1758(a)(2)(A)(ii) and 7 CFR 210.10(d)(1)(i), 220.8(d), and
226.20(a)(1)). This means that schools, institutions, and facilities
may offer lactose-free and reduced-lactose milk toward the milk
requirements without obtaining a request from a parent or guardian or a
medical authority. A few industry respondents encouraged USDA to
provide incentives to schools that opt to offer lactose-free milk on a
routine basis to all students who want it, and to work with industry to
facilitate more extensive offerings of lactose-free milk in schools.
For example, these respondents suggested that USDA design a
specification for 8-ounce, lactose-free milk and offer it through USDA
Foods. Similarly, a State agency noted that it would be helpful if
processors packaged 8-ounce, lactose-free or reduced-lactose milks to
make these options more accessible to operators.
Several respondents raised concerns on behalf of children who
cannot consume, or have difficulty consuming, cow's milk. For example,
a group of State Attorneys General mentioned that children of color
have markedly higher rates of lactose intolerance, citing a 2013 study
\59\ that found that Black children were twice as likely as non-
Hispanic white children to have allergic sensitization to milk.
Similarly, a letter from Members of Congress noted that ``most Black,
Indigenous, and other People of Color (BIPOC) are lactose intolerant.''
An advocacy group cited the National Institutes of Health website,
which states that about 68 percent of the world's population has
lactose malabsorption.\60\ A few individuals shared their personal
experiences facing digestive issues as a child, which they attributed
to drinking cow's milk with their school lunch. These respondents
suggested improved access to fluid milk substitutes could help students
avoid experiencing the same discomfort today. To help address these
issues, a form letter campaign suggested that USDA clarify in the final
rule that lactose intolerance may be considered a disability. As noted,
a participant whose digestion is impaired due to lactose intolerance
may be a person with a disability that requires a menu substitution for
fluid milk, and the statute and regulation require schools,
institutions, and facilities to provide meal modifications for
participants with a disability that restricts their diet. As emphasized
by these and numerous other comments, USDA appreciates the importance
of clarifying the requirements for meal modifications for disability
reasons and fluid milk substitutes for non-disability reasons. USDA is
committed to providing guidance to help ensure participants who require
a substitution for cow's milk due to a disability receive a meal
modification.
---------------------------------------------------------------------------
\59\ The public comment cited the following study: Wegienka et
al., Racial Differences in Allergic Sensitization: Recent Findings
and Future Directions, Current Allergy and Asthma Reports, June
2013, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4888051.
\60\ The public comment cited the following web page: National
Institutes of Health. How common is lactose malabsorption? Available
at: https://www.niddk.nih.gov/health-information/digestive-diseases/
lactose-intolerance/definition-
facts#:~:text=While%20most%20infants%20can%20digest,world%27s%20popul
ation%20has%20lactose%20malabsorption.
---------------------------------------------------------------------------
Final Rule
This final rule reorganizes the NSLP regulatory text related to
fluid milk substitutes for non-disability reasons. This rule moves the
regulatory text explaining the non-disability fluid milk substitute
requirements from 7 CFR 210.10(m), which discusses exceptions and
variations allowed in reimbursable meals, to 7 CFR 210.10(d), which
discusses the fluid milk requirements. As noted in the proposed rule,
USDA does not have the authority to change the statutory requirements
for non-disability fluid milk substitutes,\61\ such as the statutory
requirement that fluid milk substitutes meet specific nutrition
requirements and that fluid milk substitutes must be requested in
writing. Therefore, this final rule does not make any substantive
changes to the non-disability fluid milk substitute request process
outlined in regulation. However, USDA greatly appreciates input that
respondents provided on the request process, including their advice on
best practices to improve the process for program operators, families,
and participants. USDA will consider including this input in future
best practice resources.
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\61\ As detailed in the Current Requirements section, the
following requirements related to fluid milk substitutes are
statutory, meaning that USDA does not have discretion to change
them: that the fluid milk substitute is nutritionally equivalent to
fluid milk and meets nutritional standards established by the
Secretary, which must include fortification of calcium, protein,
vitamin A, and vitamin D to levels found in cow's milk (42 U.S.C.
1758(a)(2)(B)(i)); that the substitution is requested in writing by
a medical authority or the child's parent or legal guardian (42
U.S.C. 1758(a)(2)(B)(ii)); that the school notify the State agency
if it is providing fluid milk substitutes for non-disability reasons
(42 U.S.C. 1758(a)(2)(B)(ii)); and that the school cover any
expenses related to providing fluid milk substitutes in excess of
program reimbursements (42 U.S.C. 1758(a)(2)(B)(iii)). This
requirement also applies to institutions or facilities in the CACFP
(42 U.S.C. 1766(g)(4)(D)).
---------------------------------------------------------------------------
USDA also encourages State agencies, schools, institutions,
facilities, and other stakeholders to consider this input in their
State and local processes. For example, community organizations could
partner with institutions and facilities to provide families with
information about lactose intolerance. USDA reminds schools,
institutions, and facilities that lactose-free and reduced-lactose milk
meet the meal pattern requirements for fluid milk (7 CFR
210.10(d)(1)(i), 215.7a(a), 220.8(d), and 226.20(a)(1)). Schools,
institutions, and facilities may choose to provide lactose-free and
reduced-lactose milk to participants without needing to obtain a
written request from a parent or guardian.
Regarding fluid milk substitutes that require a written request
from a parent or guardian, school food authorities could provide a
simple form that parents and guardians could use to request a
substitute when sending student registration materials. For its part,
USDA remains committed to providing guidance to clarify the differences
between meal modifications for disability reasons and fluid milk
substitutes for non-disability reasons and will consider ways to
improve guidance related to the fluid milk substitutes process. Please
see Section 14: Meal Modifications for a more detailed overview of meal
modifications
[[Page 31988]]
for disability reasons, including updates made by this rulemaking.
USDA appreciates requests for clarification about whether fluid
milk substitutes offered in the NSLP and SBP are impacted by the added
sugars provision of this rule. USDA did not propose to apply the
product-based added sugars limit for flavored milk to fluid milk
substitutes; that proposal was specific to cow's milk. Therefore, fluid
milk substitutes are not required to meet the product-based added
sugars limit for flavored cow's milk. However, effective SY 2027-2028,
all meals offered during a school week--including meals containing
fluid milk substitutes--will be required to, on average, meet the
weekly added sugars limit (i.e., no more than 10 percent of calories
from added sugars).
Accordingly, this final rule amends 7 CFR 210.10(d) and (m) to
reorganize the regulatory text related to fluid milk substitutes for
non-disability reasons in the school meal programs. Schools are not
required to change menus or operations as a result of this technical
change.
Section 3C: Fluid Milk Substitutes: Nutrient Requirements
Current Requirements and Proposed Rule
As detailed above, the statute and regulations specify nutrition
requirements for fluid milk substitutes (42 U.S.C. 1758(a)(2)(B)(i), 42
U.S.C. 1766(g)(4)(B), 7 CFR 210.10(d)(3), and 226.20(g)(4)(B)).
Currently, the vitamin A and vitamin D requirements are specified in
International Units, or IUs. However, in 2016, the FDA published a
final rule that changed the labeling requirements for vitamins A and D
to micrograms (mcg) rather than IUs.\62\
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\62\ Food and Drug Administration. Food Labeling: Revision of
the Nutrition and Supplement Facts Labels (81 FR 33742, May 27,
2016). Available at: https://www.federalregister.gov/documents/2016/05/27/2016-11867/food-labeling-revision-of-the-nutrition-and-supplement-facts-labels.
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To align with the labeling requirements in the FDA's rule, USDA
proposed to update the regulatory nutrition requirements for fluid milk
substitutes in the 2020 proposed rule. This proposal applied to NSLP,
SMP, and CACFP regulations for fluid milk substitutes.
Public Comments
USDA received 46 of the comments on this provision of the 2020
proposed rule, including 22 unique comments; all supported this change.
Several proponents suggested that this change could reduce burden and
make it easier for child nutrition program operators to identify fluid
milk substitutes. A State agency offered support for aligning
regulations with current packaging information, agreeing that this
could reduce burden. Another State agency noted that the current
inconsistency creates additional work and strongly supported the
proposed change.
Final Rule
As a conforming amendment, this final rule changes the units for
vitamin A and vitamin D requirements for fluid milk substitutes.
Instead of 500 IUs, the unit for the vitamin A requirement is now 150
mcg retinol activity equivalents (RAE) per 8 fluid ounces. Instead of
100 IUs, the unit for the vitamin D requirement is now 2.5 mcg per 8
fluid ounces. These requirements, along with the other nutrition
requirements for fluid milk substitutes, are shown in the table below.
[GRAPHIC] [TIFF OMITTED] TR25AP24.076
The amount of vitamin A and vitamin D required in fluid milk
substitutes does not change; only the unit of measurement has changed
to conform to FDA labeling requirements.
Accordingly, this final rule amends 7 CFR 210.10(d)(2)(ii),
215.7a(b)(2), and 226.20(g)(3)(ii). Child nutrition program operators
are not required to change menus or operations as a result of this
technical change.
Section 4: Whole Grains
Current Requirement
Current regulations at 7 CFR 210.10(c)(2)(iv) and 220.8(c)(2)(iv)
require that at least 80 percent of the weekly grains offered in the
school lunch and breakfast programs must be whole grain-rich. The
remaining grain items offered must be enriched. To meet USDA's whole
grain-rich criteria, a product must contain 50 to 100 percent whole
grains; any grain ingredients that are not whole grain must be
enriched, bran, or germ. The current whole grain-rich requirement took
effect on July 1, 2022.
Proposed Rule
The proposed rule included two options for offering whole grains in
the school lunch and breakfast programs and requested public input on
both. The rule:
Proposed to maintain the current whole grains requirement
that at least 80 percent of the weekly grains offered are whole grain-
rich, based on ounce equivalents.
Requested public input on an alternative whole grains
option, which
[[Page 31989]]
would require that all grains offered must be whole grain-rich, except
that one day each school week, schools may offer enriched grains.
USDA requested public input on both approaches as well as the
following questions:
Which option would be simplest for menu planners to
implement, and why?
Which option would be simplest to monitor, and why?
In addition, USDA proposed to codify the definition of ``whole
grain-rich'' for clarity. The proposed regulatory definition reads as
follows: Whole grain-rich is the term designated by FNS to indicate
that the grain content of a product is between 50 and 100 percent whole
grain with any remaining grains being enriched. This proposed
definition would not change the meaning of whole grain-rich, which has
previously been communicated in USDA guidance. USDA proposed codifying
the definition in NSLP, SBP, and CACFP regulations.
Finally, USDA proposed to update the definition of ``entr[eacute]e
item'' in the competitive food service and standards regulations (7 CFR
210.11(a)(3)).\63\ These proposed changes sought to update the whole
grain-rich requirements for entr[eacute]e items sold as Smart Snacks in
School for consistency with school meal requirements.
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\63\ For more information on Smart Snacks in Schools, see: U.S.
Department of Agriculture, Tools for Schools--Focusing on Smart
Snacks. Available at: https://www.fns.usda.gov/cn/tools-schools-focusing-smart-snacks.
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Public Comments
USDA received over 80,000 comments on the whole grains provision of
the proposed rule, a majority of which were coded as ``mixed'' or
``other'' comments. Overall, about 3,800 comments supported whole
grains, including 47 unique comments, while 49 comments opposed whole
grains, including 44 unique comments. State agencies, school nutrition
professionals, advocacy groups, professional organizations, industry
respondents, dietitians, school nutrition professionals, and
individuals provided comments on the proposals. At a high level,
respondents provided the following feedback on whole grains:
Whole grains are an important source of fiber and other
nutrients.
Whole grain-rich varieties of certain foods are less
palatable to students, and some whole grain-rich products are less
widely available than enriched products.
USDA should establish a whole grain-rich requirement that
allows flexibility for schools to occasionally offer enriched grains.
More detailed respondent feedback, including respondent feedback on
the proposal to maintain the current requirement, as well as the
alternative days-per-week model, is included below.
Importance of Whole Grains
Many respondents highlighted the importance of whole grains to
children's diets. An advocacy group supported whole grain consumption
for children's health, reasoning that whole grain foods are wholesome,
nutrient-dense, and high quality. An industry respondent mentioned that
whole grain-rich requirements in school meals allow students to benefit
from whole grain foods, which provide important nutrients. An
individual agreed, adding that whole grains are a good source of
dietary fiber. Similarly, another respondent asserted that whole grain
consumption should be encouraged because of the ``well documented''
positive health effects.
Proposed Approach: Maintain 80 Percent Whole Grain-Rich Requirement,
Based on Ounce Equivalents
About 4,800 respondents supported maintaining the current whole
grain-rich requirement, including 291 unique comments. Several
respondents, including a State agency and a few dietitians, stated that
maintaining the current, 80 percent requirement would provide a
balanced approach throughout the week and allow menu planners and
students continued flexibility. An array of respondents supported
maintaining the current requirement because of the nutritional benefits
of whole grains and fiber consumption. Many respondents, including
school nutrition professionals, agreed that the current requirement
helps to increase students' whole grain consumption while allowing
flexibility to offer some enriched grains, such as pasta. A State
agency, professional organizations, school districts, and form letter
campaigns noted that maintaining the current requirement would
encourage whole grain consumption while allowing schools the
opportunity to serve culturally relevant enriched grain items.
One respondent appreciated the current 80 percent whole grain-rich
requirement and mentioned that their school menu usually offers about
90 percent whole grain-rich grains. This respondent stated that the 80
percent requirement provides ``wiggle room'' if a product they normally
buy as whole grain-rich is not available and they have to buy the
enriched option. A school nutrition professional explained that while
it took several years to adjust to whole grain-rich products, students
at their school now mostly accept them. Another school district shared
that its schools implement a 100 percent whole grain-rich requirement,
but still supported the 80 percent requirement because it allows
flexibility for schools to occasionally offer enriched grains.
A State agency supported maintaining the current requirement
because schools have successfully implemented, and are comfortable
with, the requirement. Similarly, another State agency noted that
schools can rely on existing menu planning software for implementation
and monitoring. A national organization, representing tens of thousands
of school nutrition professionals supported the current requirement,
emphasizing that this approach would be the ``simplest'' for menu
planners to implement and State agencies to monitor. One State agency
and two professional organizations suggested that maintaining the
current requirement would not require staff retraining or menu changes,
and would prevent confusion in menu planning, for example, during
shortened school weeks.
Twenty-one respondents, all unique comments, opposed the current
whole grain-rich requirement or raised concerns about implementation.
For example, a State agency expressed concern that the 80 percent
threshold may contribute to administrative burden for both menu
planning and Administrative Reviews. This State agency noted that
calculating 80 percent whole grain-rich offerings across weekly menus
could be complex, time-consuming, and error prone. Another respondent
mentioned that the current requirement is easier to monitor with
nutrition software but acknowledged that the days-per-week model would
be easier for schools that do not have software.
Alternative Approach: Days-Per-Week Model
About 9,100 respondents supported the alternative days-per-week
model, including 47 unique comments. A State agency reasoned that the
alternative option would simplify menu planning and reduce non-
compliance and monitoring burden. Other respondents, including a
professional association, a few school nutrition professionals, and a
dietitian, agreed, and gave examples of how the alternative approach
could be easier to implement. For example, respondents suggested that
the days-per-week requirement would be easier to understand, would
eliminate the need to calculate percentages, and would
[[Page 31990]]
simplify reviews for State agencies. A school nutrition professional
stated that they are implementing the current whole grain-rich
requirement using a days-per-week model and asserted that they find
this approach simple to plan and monitor.
Other proponents added that the alternative whole grain-rich
approach is nutritionally sound. For example, a form letter campaign
claimed that the days-per-week model supports a strong whole grain
standard. An industry respondent mentioned that allowing enriched
grains one day per week would ensure that students are exposed to whole
grains in most of their school meals.
Fifty-six respondents, including 37 unique comments, opposed the
alternative days-per-week model or raised concerns about
implementation. A dietitian expressed concern that the alternative
model would limit menu planning flexibility. A State agency shared
concerns that schools could potentially offer a larger amount of
enriched grains one day each school week, which could reduce the
overall percentage of whole grain-rich items offered during the week. A
few State agencies requested USDA provide implementation guidance for
the days-per-week model, particularly for schools with alternative
schedules (such as four- or seven-day school weeks) and for school
weeks that are shortened due to holidays, vacations, unexpected
closures, and emergencies. Some respondents cautioned that during
shortened school weeks, an even larger amount of overall grain
offerings could be enriched.
Other Approaches Suggested by Comments
Several respondents provided mixed responses on the two approaches
or suggested their own alternatives. Many respondents, including
professional organizations, advocacy groups, and a school district
encouraged USDA to allow school districts to choose which of the whole
grain-rich approaches they would like to implement, reasoning that
doing so would provide greater flexibility in program operations. A few
professional organizations added that some school districts may find it
easier to implement one option over the other, depending on their
unique supply chain, staffing, and menu planning considerations. Some
highlighted that providing a choice between both options would be
considerate of the operational differences between school districts of
varying sizes as well as differences between rural and urban school
districts.
An advocacy group expressed concern that while both approaches
would encourage whole grain consumption, they do not fully align with
the Dietary Guidelines recommendation that at least half of grains are
whole grains.\64\ Several advocacy groups urged USDA to require 100
percent of grain products offered in school meals to be whole-grain
rich. A State agency emphasized that they have maintained a 100 percent
whole grain-rich requirement, suggesting that their schools experience
minimal issues complying with their statewide requirement and are
successful in procuring products to meet that requirement. Another
individual recommended USDA require all grains to be whole grains
(rather than having a whole grain-rich requirement) and expressed
concern that whole grain-rich items are only required to contain at
least 50 percent whole grains. For clarity, USDA proposed codifying the
definition of whole grain-rich to explain that products containing 50
to 100 percent whole grain, such as whole grain oatmeal, are whole
grain-rich.
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\64\ See page 18. U.S. Department of Agriculture and U.S.
Department of Health and Human Services. 2020-2025 Dietary
Guidelines for Americans. 9th Edition. December 2020. Available at:
https://www.dietaryguidelines.gov/.
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An advocacy group supported strengthening the whole grain-rich
requirement reasoning that it could improve schools' environmental
sustainability. Instead of permanently maintaining the current
requirement, this respondent recommended that USDA transition to
requiring all grains offered to be whole grain-rich by SY 2027-2028.
Or, if USDA opted to finalize the days-per-week model, this advocacy
group recommended that USDA add a requirement that schools ``balance''
the enriched grain day with a 100 percent whole grains day. A form
letter suggested that USDA adopt a 100 percent whole grain-rich
requirement or increase the whole grain-rich threshold to 90 percent
and adopt an additional requirement for fiber. An industry respondent
supported the 80 percent threshold for NSLP, but suggested USDA require
that 100 percent of grains offered in the SBP be whole grain-rich.
Additionally, this respondent suggested that all breakfast cereal
offered in child nutrition programs should be whole grain-rich, noting
that there are a wide variety of whole grain-rich breakfast cereals
available.
Some respondents provided suggestions or questions for USDA to
consider. A parent suggested adjusting the proposed whole grain-rich
definition by emphasizing more whole (100 percent) grains. One
respondent asked if schools can receive ``credit'' if they offer 100
percent whole grains (which exceed the 50 percent threshold to qualify
as whole grain-rich) in order to offer more enriched grains. A school
district urged USDA to consider an approach that would require schools
to offer more whole grains, such as brown rice and bread from whole
wheat flour, as opposed to ``processed and manufactured products.'' A
form letter suggested USDA consider developing a requirement for fiber,
noting that grains are a top source of fiber in school meals.
Similarly, one advocacy group suggested a carbohydrate-to-fiber ratio
standard to help schools identify more healthful grain products.
Conversely, other respondents suggested that USDA decrease the
current 80 percent whole grain-rich threshold. A school nutrition
director opposed both whole grain proposals asserting that there is no
significant difference between the two options. This respondent
suggested USDA instead lower the current whole grain-rich threshold
from 80 to 50 percent. A State agency advocated for a 50 to 75 percent
whole grain-rich threshold, suggesting that the current 80 percent
threshold is challenging to meet for grades K-5 based on the minimum
grain amount required for the week. A few other respondents, including
a State agency, professional association, school district, and
individual, argued that the 80 percent threshold limits menu options
and claimed that implementing a 50 percent whole grain-rich requirement
would yield higher student participation and more menu planning
flexibility. A dietitian agreed, stating that a 50 percent whole grain-
rich requirement would provide an ``ideal balance'' between providing
whole grains and enriched grains in school meals.
Some respondents who supported a lower whole grain-rich threshold
cited specific challenges with offering whole grain-rich foods in
school meals, including ongoing supply chain issues and concerns about
the taste of certain whole grain-rich products. One respondent
mentioned that schools continue to experience supply chain issues and
production disruptions on a weekly basis. In recent years, this
respondent stated that schools have experienced limited availability of
whole grain-rich items and vendors have substituted enriched grain
products. When commenting on the whole grains proposal, a food industry
respondent explained that product development, reformulation, and
recipe adjustments are time-consuming activities. This respondent
stated that
[[Page 31991]]
rapid reformulation could increase prices and interfere with consumer
testing. Dietitians from a State agency noted that identifying whole
grain-rich items is challenging for small school districts that
purchase foods from consumer markets and small distributors, which do
not have crediting information readily available.
Relatedly, a few respondents shared examples of whole grain-rich
products that they asserted are not palatable or do not work well in
school cafeteria operations, such as egg noodles, pasta, tortillas,
grits, and biscuits. An individual claimed that students do not like
certain foods manufactured with whole grain ingredients, and a school
nutrition professional asserted that students refuse to consume whole
grain-rich biscuits and snack crackers. A school district claimed that
offering enriched grains is necessary for student participation in
school meals. Another respondent expressed that it is critical for USDA
to allow schools to occasionally offer enriched grains, adding that
some schools encounter strong regional and cultural preferences for
specific items, such as flour tortillas and white rice.
Comments on Other Whole Grain-Rich Proposals
Respondents also provided feedback on the proposal to codify the
definition of ``whole grain-rich'' in NSLP, SBP, and CACFP regulations
and the proposal to update the definition of ``entr[eacute]e item'' in
the competitive food service and standards regulations. One respondent
stated that the proposed regulatory definition for the term ``whole
grain-rich'' would allow school nutrition professionals to make more
informed decisions when implementing the whole grain-rich requirement.
An advocacy group suggested using a minimum of 51 percent in the
definition to emphasize that a product should have more whole grains
than enriched grains to qualify as whole grain-rich. A professional
organization shared concerns that adding the term ``whole grain-rich''
in regulation will require administrative costs for printing materials
and training CACFP operators and suggested one year to phase-in
implementation. A State agency inquired about what impact, if any, this
definition would have on how CACFP program operators identify whole
grain-rich items.
Regarding the proposal to update the definition of ``entr[eacute]e
item,'' a few advocacy groups opposed the change and encouraged USDA to
maintain the whole grain-rich requirement for Smart Snacks in School
entr[eacute]e items to ensure students purchasing food [agrave] la
carte receive whole grains. Another advocacy group agreed, stating that
while they understood the intent of the change, they were concerned
about the impact of schools selling enriched grain entrees [agrave] la
carte. Other respondents, including a State agency and advocacy groups,
supported the proposed change. One advocacy group noted that
maintaining the current definition would require entr[eacute]es sold
[agrave] la carte to be whole grain-rich, which would prevent schools
from selling certain enriched grain NSLP and SBP entr[eacute]es
[agrave] la carte. This respondent felt the proposed change would
simplify the rules, support consistency within the school meal
programs, and improve compliance. Another advocacy group agreed,
stating this change would be beneficial to the school meal programs.
Final Rule
Maintain 80 Percent Whole Grain-Rich Requirement, Based on Ounce
Equivalents
This final rule maintains the current whole grains requirement that
at least 80 percent of the weekly grains offered in the school lunch
and breakfast programs are whole grain-rich, based on ounce
equivalents. This final rule is based on stakeholder feedback, which
emphasized the importance of offering meals that meet local and
cultural preferences by ensuring nutrition requirements occasionally
allow schools to offer enriched grains. For example, this final rule
allows schools the flexibility to occasionally serve white rice or non-
whole grain-rich tortillas, while still promoting whole grain-rich
foods throughout the school week. The requirement that at least 80
percent of the weekly grains offered in reimbursable school lunch and
breakfast programs are whole grain-rich is a minimum standard, not a
maximum. Schools may choose to increase whole grain-rich offerings
beyond this minimum standard. It reflects a practical and feasible way
to work toward the Dietary Guidelines' recommendation to increase whole
grain consumption. USDA encourages schools to incorporate whole grains
in their menus as often as possible to support children's health.
This final rule also supports USDA's commitment to advancing
nutrition security by improving the nutritional quality of school
meals. Research has demonstrated the importance of school meals in
improving children's overall diets, including their whole grain
consumption. For example, USDA research published in April 2023 found
that after 2013, following implementation of the initial whole grain-
rich requirements for school meals, school food became the most whole
grain-dense food source in children's diets.\65\ USDA expects the
Healthy Eating Index (HEI) component score for whole grains will remain
high under this final standard. For reference, in SY 2014-2015, USDA
found the HEI component score for whole grains was 95 percent of the
maximum score at school breakfast and at lunch.\66\ In SY 2014-2015,
all grains offered in the NSLP and SBP were required to be whole grain-
rich; however, school food authorities that demonstrated a hardship in
meeting this requirement had the option to request an exemption that
allowed them to meet a reduced whole grain-rich requirement: at least
50 percent of all grains offered had to be whole grain-rich.
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\65\ Lin, Biing-Hwan, Travis A. Smith, and Joanne F. Guthrie.
April 2023. Trends in U.S. WholeGrain Intakes 1994-2018: The Roles
of Age, Food Source, and School Food, ERR-311, U.S. Department of
Agriculture, Economic Research Service. Available at: https://www.ers.usda.gov/publications/pub-details/?pubid=106291.
\66\ See Figure ES.14. And Figure ES.17. School Nutrition and
Meal Cost Study, Final Report Volume 2: Nutritional Characteristics
of School Meals by Elizabeth Gearan, Mary Kay Fox, Katherine Niland,
Dallas Dotter, Liana Washburn, Patricia Connor, Lauren Olsho, and
Tara Wommak. Project Officer: John Endahl. Alexandria, VA: April
2019. Available at: https://www.fns.usda.gov/school-nutrition-and-meal-cost-study. (OMB Control Number 0584-0596, expiration date 07/
31/2017.)
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USDA acknowledges that some respondents asserted that the 80
percent weekly whole grain-rich requirement does not align with the
Dietary Guidelines recommendations. It is important to acknowledge that
schools may offer whole grain-rich foods more often than required
throughout the school week and may choose to offer individual items
that exceed the minimum threshold to qualify as whole grain-rich. For
example, 100 percent whole grain bread and brown rice are examples of
foods that exceed the 50 percent minimum criteria to be whole grain-
rich. When schools exceed the weekly 80 percent requirement or offer
100 percent whole grain food items, students have greater access to the
nutritional benefits of whole grains, further aligning school meals
with the goals of the Dietary Guidelines, while still maintaining some
flexibility for schools to offer enriched grains. USDA appreciates
respondent feedback and continues to encourage schools to offer more
whole grain-rich foods, including 100 percent whole grain products.
Maintaining the option for schools to occasionally offer enriched
grains responds to stakeholders who advocated
[[Page 31992]]
for USDA to allow some menu planning flexibility to provide a variety
of grain offerings, including student, regional, and cultural
favorites.
USDA appreciates comments received on the alternative days-per-week
model and acknowledges respondents' concerns that this approach could
be difficult to implement and monitor, particularly during school weeks
that are shortened due to emergency school closures, holidays, or
scheduled breaks. USDA also acknowledges that the days-per-week model
would require special consideration for schools with four-day
schedules, or other alternative schedules. Due to this variability,
under a days-per-week model, there is potential that the overall amount
of whole grain-rich items offered could decrease, which could reduce
children's overall whole grain consumption. Therefore, USDA has
determined that maintaining the current 80 percent whole grain-rich
requirement is a more practical approach, as it supports children's
consumption of whole grains and has already been operationally
successful in schools nationwide.
Some respondents mentioned that they implement the current 80
percent whole grain-rich requirement using a days-per-week model.
Schools may choose to use this approach under the final rule, provided
they continue to offer at least 80 percent of all grains as whole
grain-rich, calculated by ounce equivalents. USDA encourages schools to
implement a strategy that best meets their operational needs and that
meets the required 80 percent whole grain-rich threshold.
USDA recognizes that some schools are concerned about product
availability due to supply chain challenges. USDA appreciates the
importance of maintaining strong, long-term nutrition standards and
incentivizing the food industry to develop products that support
schools' efforts to provide children with nutritious school meals. In
public comments, industry respondents and schools shared progress made
toward expanding whole grain-rich offerings that children enjoy. For
example, industry respondents mentioned a wide variety of whole grain-
rich products that are currently available in the K-12 market. One
industry respondent stated that they offer more than 25 entr[eacute]e
items containing whole grain-rich pasta or breading and suggested that
these items are accepted by students. Another industry respondent
stated that manufacturers ``have made great strides'' in developing
whole grain-rich breakfast options. In addition, USDA Foods in Schools
offers whole grain and whole grain-rich products available to schools
in the yearly USDA Foods Available List.\67\ For example, whole grain-
rich USDA Foods available to schools for SY 2023-2024 included 100
percent white whole wheat flour, rolled oats, pancakes, brown rice,
tortillas, and breaded fish sticks.
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\67\ U.S. Department of Agriculture, USDA Foods Available List
January 9, 2023. Available at: https://www.fns.usda.gov/usda-fis/usda-foods-available.
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USDA technical assistance resources also support efforts to offer
whole grain-rich foods in the child nutrition programs. USDA developed
the Whole Grain Resource for the National School Lunch and Breakfast
Programs \68\ as well as three separate tip sheets on grains in the
Crediting in the Child Nutrition Programs \69\ series that assist
school nutrition professionals with selecting appropriate whole grain-
rich products for their programs. For CACFP program operators, USDA
developed the Crediting Handbook for the Child and Adult Care Food
Program \70\ that includes technical assistance for identifying and
serving whole grain-rich foods served in child and adult care centers.
Additionally, USDA develops and shares recipes with whole grain-rich
ingredients for child nutrition programs that are published on the Team
Nutrition Recipes \71\ web page.
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\68\ U.S. Department of Agriculture, Whole Grain Resource for
the National School Lunch and Breakfast Programs December 13, 2022.
Available at: https://www.fns.usda.gov/tn/whole-grain-resource-national-school-lunch-and-breakfast-programs.
\69\ U.S. Department of Agriculture, Crediting in the Child
Nutrition Programs May 23, 2023. Available at: https://www.fns.usda.gov/tn/crediting-grains.
\70\ U.S. Department of Agriculture, Crediting Handbook for the
Child and Adult Care Food Program May 8, 2023. Available at https://www.fns.usda.gov/tn/crediting-handbook-child-and-adult-care-food-program.
\71\ U.S. Department of Agriculture, Team Nutrition Recipes
March 10, 2023. Available at: https://www.fns.usda.gov/tn/team-nutrition-recipes.
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Definition of Whole Grain-Rich
This final rule codifies the definition of ``whole grain-rich'' in
NSLP, SBP, and CACFP regulations. The term ``whole grain-rich'' was
originally coined by the National Academy of Medicine (formerly known
as the Institute of Medicine) in their 2010 report, School Meals:
Building Blocks for Healthy Children,\72\ and was previously
communicated in USDA guidance. This final rule defines the term in
regulation for clarity. The intent of this change is to codify the
existing definition in NSLP, SBP, and CACFP regulations. The definition
in regulation reads as follows: Whole grain-rich is the term designated
by FNS to indicate that the grain content of a product is between 50
and 100 percent whole grain with any remaining grains being enriched.
This definition does not change the meaning of whole grain-rich, and
program operators can continue to identify whole grain-rich products as
described in current guidance. For example, CACFP program operators may
continue to use training resources, such as Identifying Whole Grain-
Rich Foods for CACFP,\73\ to credit whole grain-rich foods.
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\72\ See: 7 Recommendations for Nutrient Targets and Meal
Requirements for School Meals.'' Institute of Medicine. 2010. School
Meals: Building Blocks for Healthy Children. Washington, DC: The
National Academies Press. https://doi.org/10.17226/12751. National
Academies of Sciences, Engineering, and Medicine. 2010. School
Meals: Building Blocks for Healthy Children. Washington, DC: The
National Academies Press. https://doi.org/10.17226/12751.
\73\ U.S. Department of Agriculture, Identifying Whole Grain-
Rich Foods For CACFP June 7, 2023. Available at: https://www.fns.usda.gov/tn/identifying-whole-grain-rich-foods-cacfp.
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USDA appreciates one respondent's suggestion to adjust the
definition to require at least 51 percent of a product to be whole
grain in order to qualify as whole grain-rich. However, USDA will
finalize the definition as proposed. The definition codified in this
final rule was originally used in the National Academy of Medicine's
2010 report and has been in place through policy guidance for more than
a decade. Program operators and the food industry have worked
diligently to comply with this longstanding definition. For example,
the food industry has worked to develop products that comply with the
existing definition. While USDA acknowledges that while the
respondent's suggested change is minor, finalizing the proposed
definition will avoid any unintended consequences that could impact
products that comply with the longstanding definition of whole grain-
rich. Further, the definition of whole grain-rich finalized in this
rulemaking derives from the Dietary Guidelines, which recommends at
least half, or 50 percent, of total grains be whole grains.
Entr[eacute]e Items Sold [agrave] la Carte
As proposed, this final rule also updates the definition of
``entr[eacute]e item'' in the competitive food standards regulations at
7 CFR 210.11(a) to clarify that both whole grain-rich and enriched
grain entr[eacute]es offered as part of a reimbursable school meal may
qualify as an ``entr[eacute]e item'' when sold [agrave] la carte as a
``Smart Snack.'' USDA acknowledges concerns raised in public comments
about how this change could result in schools selling enriched grains
to students. However, USDA agrees with public comments that noted that
this
[[Page 31993]]
change would benefit school programs by simplifying and improving
consistency in regulations, acknowledging that both whole grain-rich
and enriched grain entr[eacute]es may be offered at school lunch and
breakfast under the current requirements. Additionally, USDA clarifies
that as proposed, this change is limited to school lunch and breakfast
program entr[eacute]es sold [agrave] la carte; this change does not
impact the general standards for competitive foods for all other items
sold [agrave] la carte. The current whole grain-rich requirements for
all other items remain in effect under this final rule; this change is
limited to school lunch and breakfast program entr[eacute]es sold
[agrave] la carte on the day of, and the school day after, they are
included on the school lunch or breakfast menu.
For context, 7 CFR 210.11(c)(3) states that any entr[eacute]e item
offered as part of a reimbursable school meal is exempt from all
competitive food standards if it is sold [agrave] la carte on the day
of, or the school day after, the entr[eacute]e is offered on a school
lunch or breakfast menu. This exemption helps school nutrition
professionals prevent food waste and manage their programs. It also
helps to reduce potential confusion about whether an entr[eacute]e
served to some students as part of a school meal can be purchased
[agrave] la carte by other students. The current definition of
``entr[eacute]e item'' in the competitive food service and standards
regulations specifies that grain entr[eacute]es must be whole grain-
rich; however, under the current requirements and this final rule,
schools may offer up to 20 percent of their total grains as enriched
grains at school lunch and breakfast each week. Therefore, under this
final rule, USDA is finalizing the proposed definition of
``entr[eacute]e item'' so it only references ``grain'' and therefore
includes entr[eacute]es offered with both whole grain-rich and enriched
grains. This change updates regulations at 7 CFR 210.11(c)(3) to
clarify that whole grain-rich and enriched grain entr[eacute]es offered
in a reimbursable lunch or breakfast may qualify for the competitive
foods entr[eacute]e exemption on the day of, or the school day after,
they are offered on the school lunch or breakfast menu. For clarity,
this change only applies to grain items sold as entr[eacute]es in
reimbursable school lunches or breakfasts and which qualify for an
exemption to the competitive food standards. All other grain items sold
[agrave] la carte must comply with the general standards for
competitive foods at 7 CFR 210.11, which require that grain items sold
[agrave] la carte must meet USDA's whole grain-rich criteria.
Accordingly, this final rule amends 7 CFR 210.2, 210.10(c)(2)(iii),
210.11(a)(3), 220.2, 220.8(c)(2)(iii), and 226.2 to codify the
definition of the term ``whole grain-rich,'' to maintain the current 80
percent whole grain-rich requirement for the school lunch and breakfast
programs, and to update the definition of ``entr[eacute]e item'' to
account for the whole grain-rich and enriched grain requirements in
school meals. Because this rule finalizes the current whole grain-rich
requirements and terminology, as proposed, child nutrition program
operators will not need to make changes to comply with this provision
of this rule.
Section 5: Sodium
Current Requirement
Current regulations at 7 CFR 210.10(f)(3) and 220.8(f) required
schools to meet Sodium Target 1 for school lunch and breakfast in SY
2022-2023. For school lunch only, schools were required to meet Sodium
Target 1A in SY 2023-2024. These limits are shown in the tables below:
[GRAPHIC] [TIFF OMITTED] TR25AP24.077
[GRAPHIC] [TIFF OMITTED] TR25AP24.078
Proposed Rule
USDA proposed to gradually reduce sodium in the school lunch and
breakfast programs. For school lunch, USDA proposed three reductions,
to be phased in as follows and as shown in the chart below:
SY 2025-2026: Schools would implement a 10 percent
reduction from SY 2024-2025 school lunch sodium limits.
SY 2027-2028: Schools would implement a 10 percent
reduction from SY 2026-2027 school lunch sodium limits.
SY 2029-2030: Schools would implement a 10 percent
reduction from SY 2028-2029 school lunch sodium limits.
[[Page 31994]]
[GRAPHIC] [TIFF OMITTED] TR25AP24.079
For school breakfast, USDA proposed two reductions, to be phased in
as follows and as shown in the chart below:
SY 2025-2026: Schools would implement a 10 percent
reduction from SY 2024-2025 school breakfast sodium limits.
SY 2027-2028: Schools would implement a 10 percent
reduction from SY 2026-2027 school breakfast sodium limits.
[GRAPHIC] [TIFF OMITTED] TR25AP24.080
Public Comments
USDA received over 95,000 comments on the proposed sodium limits, a
majority of which (about 90,000 comments, including about 400 unique
comments) were categorized as ``mixed'' or ``other'' comments. Overall,
about 4,900 comments supported sodium reduction as proposed, including
about 180 unique comments, 565 comments opposed sodium reductions,
including almost 500 unique comments, and over 85,000 comments, nearly
all of which were form letters, supported sodium reduction beyond what
was proposed. Comments were submitted by State agencies, school
nutrition professionals, advocacy groups, industry respondents,
professional organizations, school districts, dietitians, and
individuals, including parents. At a high level, respondents provided
the following feedback on sodium:
Lower sodium school meals are important to children's
health, and some respondents recommended more aggressive reductions,
such as 15 percent reductions between sodium limits instead of 10
percent reductions.
Sodium reduction in school meals is dependent on product
availability, and product reformulation takes time and resources.
Students' consumption of higher sodium foods outside of
school impacts their acceptance of lower sodium school meals.
USDA should research the impact of sodium reduction on
school meal menu planning, student participation, and student health
prior to finalizing further sodium reductions.
Of the ``mixed'' comments, several form letters with over 85,000
combined submissions supported the sodium proposals but urged USDA to
finalize additional reductions, beyond the proposed reductions. Two
other ``mixed'' form letters with over 3,600 submissions recommended
that USDA retain the current sodium limits instead of moving forward
with the proposed limits. Other comments in this category offered
suggestions, which are described in more detail below.
Importance of Reducing Sodium
Several respondents discussed the importance of sodium reduction
for promoting health across the U.S. population. Advocacy groups
mentioned that proposed limits represent progress toward improving
children's health and that reducing sodium helps prevent chronic
disease. Similarly, a form letter campaign stated that sodium reduction
would ``benefit all students and further reduce diet-related
diseases.'' A parent agreed, emphasizing the importance of preventative
measures to protect children's health. An individual asserted that too
much sodium increases children's risk of elevated blood pressure and
other chronic health conditions. An advocacy group stated that aligning
the proposed rule with the Dietary Guidelines, including phasing in
sodium reductions, ``sets students up for lifelong success.''
Reducing Sodium in School Meals and Proposed Sodium Limits
As noted, approximately 4,900 respondents supported sodium
reduction, including about 180 unique comments. A professional
organization and an advocacy group supported the proposed sodium limits
because they align with FDA's voluntary reduction goals for the broader
food supply. An industry respondent appreciated the sodium proposal
because it promotes the use of more herbs and spices in place of
sodium, which has the ``potential to shift taste preferences.'' A few
school districts supported the proposed limits, with one claiming that
manufacturers add an ``unacceptable and unnecessary'' amount of sodium
to foods to enhance flavor.
Several respondents provided feedback on the sodium limit proposed
for SY 2025-2026, or the other proposed limits. A few school districts
and school nutrition professionals supported the initial 10 percent
sodium reduction for school lunch and breakfast. A school nutrition
director described the initial reduction as ``manageable'' for schools
and manufacturers. An industry respondent agreed that USDA should
finalize the initial reduction for both programs and expressed their
commitment to implement FDA's
[[Page 31995]]
voluntary sodium reduction goals to reduce sodium in their K-12
products. Additional respondent feedback on the proposed implementation
dates and number of sodium reduction limits is described below.
Over 500 comments opposed sodium reductions, the majority of which
were unique comments. Some respondents claimed that, due to student
taste preferences, it would be difficult to maintain student acceptance
of meals under the proposed sodium reductions. A form letter campaign
and other respondents asserted school meals are not to blame for
students' excessive sodium intake, pointing instead to meals students
consume at home and at other food service establishments. This form
letter added that students' taste preferences would not adjust to
school meals with less sodium without sodium reductions in the foods
that students consume outside of school. Other respondents suggested
that school nutrition staffing challenges and reliance on pre-packaged
foods make sodium reduction challenging. For example, a dietitian
suggested that lower sodium meals may be possible with more scratch
cooking, but many districts do not have the time or resources for
scratch cooking. Other respondents, including school districts and
school nutrition professionals, explained that some schools do not have
a full kitchen or adequate staffing to prepare meals with less sodium.
A few school districts raised concerns that further sodium reductions
would lead manufacturers to replace sodium with chemical preservatives
or artificial flavorings.
Approximately 90,000 comments, including about 400 unique comments,
provided mixed or other feedback on sodium reduction. A majority of the
mixed comments fell into two main categories: those that suggested that
USDA maintain the existing sodium limits, or more often, those that
suggested that the proposed limits do not go far enough. For example,
two ``mixed'' form letters with over 3,600 submissions recommended that
USDA retain the existing sodium limits and expressed concern about the
proposed reductions. A few school nutrition professionals expressed
concerns about the palatability of lower sodium foods and
manufacturers' ability to reduce sodium in their products. A
professional association encouraged USDA to delay sodium reductions
until after conducting listening sessions with school nutrition
professionals to determine feasible approaches for lowering sodium.
However, other respondents, including several form letters with
over 85,000 combined submissions, suggested that additional sodium
reduction is needed, asserting that the proposed limits do not reduce
sodium enough. A form letter campaign mentioned that the proposed
limits represent progress but stated that the final limits in the
proposed rule do not fully align with the Dietary Guidelines. A
professional organization and a school district recommended providing
development opportunities to help school nutrition professionals
prepare lower sodium meals, offering financial support for menu
changes, and educating students and families on the importance of
sodium limits.
Product Availability and Industry Input
Numerous respondents shared input on the availability and
development of lower sodium products. An industry respondent asserted
that the food industry continues to work to reduce sodium through
``innovation, reformulation, and the use of sodium substitutes'' but
that these changes take time. Another industry respondent noted that
many manufacturers have already reformulated under the existing sodium
limits, asserting that some manufacturers have reduced sodium in their
products by up to 80 percent. A third industry respondent asserted that
it takes ``on average, three years for manufacturers to innovate and
reformulate foods and participate in the school bidding process.'' A
State agency suggested that industry ``will not be willing or able'' to
reduce sodium in their products.
Other respondents raised concerns about competing priorities within
the food industry. For example, one industry respondent explained that
resources for reformulation are limited and manufacturers cannot
reformulate all of their products at the same time. Another respondent
emphasized that manufacturers continue to face supply chain and labor
challenges and need time to plan for further sodium reductions. An
industry respondent affirmed that product reformulations to reduce
sodium can take several months and involve ``trade-offs'' such as
reduced shelf-life and increased price. Another industry respondent
added that during the reformulation process to reduce sodium content in
products, manufacturers may need to use added sugars to maintain
palatability, suggesting that a ``careful balance'' is needed when
targeting these two ingredients.
Some respondents raised concerns about sodium levels and naturally
occurring or ``functional'' sodium in foods commonly offered in school
meals. For example, a form letter campaign, as well as other
respondents, mentioned that naturally occurring sodium is found in
foods such as bread, milk, cheese, and celery. Regarding milk, a school
nutrition professional shared that one serving of milk contains 110-125
milligrams of sodium. A few State agencies and school nutrition
directors asserted that naturally occurring sodium should be excluded
from the weekly sodium limits. An industry respondent mentioned that
``salt and sodium provide significant functionality and [food] safety''
in products like cheese. Another industry respondent expressed that the
sodium limits proposed for implementation in SY 2027-2028 and beyond
would make it hard for schools to offer plant-based alternatives that
are currently available in the school meals market, such as vegetable
crumbles and bean patties. This respondent stated that many plant-based
products ``require added sodium for food quality, palatability, and
shelf-life purposes.'' An individual suggested that condiments be
excluded from weekly sodium limits because not all students use them.
Other Alternatives Received From Public Comments
Respondents provided other suggestions or recommendations for USDA
to consider. A professional organization suggested allowing sodium
limits to be ``optional'' and that USDA encourage schools to meet
optional limits by providing a financial incentive. Several other
respondents, including school nutrition professionals and industry
respondents, encouraged USDA to research the impact of sodium
reductions on product availability, menu planning, food waste, student
acceptance, student health, and student participation in the school
meal programs. An industry respondent added that the study should
carefully consider the impacts across all age groups and at schools of
varying sizes.
Proposed Implementation Dates and Number of Reductions
USDA requested public input on the following questions about sodium
limits and the proposed implementation timeframe:
Does the proposed implementation timeframe provide
appropriate lead time for manufacturers and schools to successfully
implement the new sodium limits?
Do commenters agree with USDA's proposed schedule for
incremental sodium reductions, including both the
[[Page 31996]]
number and level of sodium reductions and the timeline, or suggest an
alternative? Why?
About 300 respondents addressed the proposed implementation
timeframe, including 66 unique comments. Some respondents suggested
that the proposed implementation timeframe was appropriate. One
respondent stated that the gradual approach to sodium reduction would
allow time for innovation. An advocacy group agreed, asserting that a
gradual approach is ``feasible for schools and the food industry.'' A
State agency affirmed that the proposed implementation dates would
allow time for student engagement, inventory management, and technical
assistance. Another State agency agreed the proposed implementation
dates provide adequate lead time for food manufacturers and schools;
however, this respondent also emphasized that timely publication of the
final rule would be key to successful implementation. An advocacy group
asserted that the proposed sodium limits and timeline ``allow schools
to plan, source, and test meals that are nutritious, palatable to
students and abide by new guidelines.''
Other respondents expressed that the timeframe would not provide
schools sufficient time to successfully implement the proposed limits.
A State agency suggested USDA reconsider the proposed schedule due to
concern about student acceptance. An industry respondent suggested that
sodium reduction needs to ``occur more gradually over the next 20 years
or more.'' This respondent recommended there be five years between each
sodium limit to ``allow technology to catch up to the requirements''
and to allow students to become accustomed to lower sodium meals. A
school nutrition professional recommended extending the timeframe for
sodium reduction over 10 to 15 years. A school district mentioned that
the proposed school breakfast limits are achievable but the proposed
school lunch limits are ``too aggressive for manufacturers to
implement.'' An individual stated that industry would need at least 3
to 5 years to develop food items to meet the proposed sodium limits.
Respondents also provided feedback on the number and levels of sodium
limits included in the proposed rule. For example, a few school
districts and an advocacy group recommended that USDA maintain the
current sodium limits, without any further reductions. A State agency
supported only the initial 10 percent reduction, asserting that
industry and the U.S. food supply should ``catch up'' before sodium
reduction beyond the initial reduction occurs in school meals. A few
industry respondents agreed, supporting the initial sodium reduction
but recommending that USDA pause on implementation of subsequent limits
until research is ``completed and understood.'' Another State agency
suggested removing the third proposed sodium limit at lunch and adding
more time in between each reduction. Several respondents referenced
sodium targets from prior USDA rulemakings, including Sodium Target 2,
which falls between the first and second proposed sodium reduction
limits.\74\ For example, some respondents suggested that Sodium Target
2 levels would be achievable for schools, but that sodium reductions
beyond Sodium Target 2 would be too challenging for schools. One
advocacy group suggested implementing larger, 15 to 20 percent
reductions every two years, instead of 10 percent reductions, or adding
a fourth or fifth sodium reduction to align with the recommendations
from the Dietary Guidelines.
---------------------------------------------------------------------------
\74\ Sodium Target 2 was established by the 2012 rule. Under the
2012 rule, Sodium Target 2 would have been implemented in SY 2017-
2018; however, legislative and administrative action prevented
implementation of sodium targets beyond Sodium Target 1. To view the
Sodium Target 2 limits as established by the 2012 rule, see: U.S.
Department of Agriculture. Nutrition Standards in the National
School Lunch and School Breakfast Programs. (77 FR 4088, January 26,
2012). Available at: https://www.federalregister.gov/d/2012-1010/p-138.
---------------------------------------------------------------------------
Suggestions for Best Practice Product-Based Sodium Limits
In addition to feedback on the sodium limits and implementation
dates, USDA requested public input on the following questions about
developing best practices for specific products:
USDA plans to recommend (but not require) sodium limits
for certain products, such as condiments and sandwiches, to further
support schools' efforts to procure lower sodium products and meet the
weekly limits.
For which products should USDA develop best practice
sodium limits?
What limits would be achievable for schools and industry,
while still supporting lower-sodium meals for children?
State agencies, advocacy groups, and other respondents recommended
that USDA develop best practice sodium limits for the following
products:
Broths and soups
Breaded chicken
Condiments and sauces
Canned vegetables and pickles
Deli meat and sandwiches
Pizza, pasta dishes, and tacos
A State agency supported USDA's plans to develop best practice
product sodium limits for certain foods and encouraged USDA to work
with the food industry to develop the voluntary limits. This State
agency mentioned that best practice product limits would help State
agencies provide technical assistance and support to schools working to
reduce sodium. Several respondents, including a form letter campaign,
opposed best practice product sodium limits for specific foods; others
suggested that developing best practice product limits would not be a
good use of time and resources. Some respondents were concerned that
best practice product sodium limits would be the ``first stop to
product-specific limit requirements'' or appeared to be confused about
the intent of the request for input. To clarify, USDA's request for
input was intended to inform recommended (not required) best practice
product sodium limits for technical assistance purposes. USDA does not
intend to require product-based sodium limits.
Final Rule
In response to feedback from stakeholders, this final rule provides
schools even more time to gradually reduce sodium in school meals and
commits to conducting a study on potential associations between sodium
reduction and student participation. As recommended by stakeholders,
including a professional organization representing school nutritional
professionals in the Nation's largest school districts, this final rule
reduces sodium in school lunch and breakfast by approximately 15
percent and 10 percent, respectively. The sodium reduction finalized in
this rule falls between the first and second sodium reduction included
in the proposed rule and reflect the Sodium Target 2 levels established
in the 2012 final rule,\75\ a level many stakeholders commented was
familiar and achievable. This final rule codifies the following sodium
limits in the school lunch and breakfast programs:
---------------------------------------------------------------------------
\75\ U.S. Department of Agriculture. Nutrition Standards in the
National School Lunch and School Breakfast Programs. (77 FR 4088,
January 26, 2012). Available at: https://www.federalregister.gov/documents/2012/01/26/2012-1010/nutrition-standards-in-the-national-school-lunch-and-school-breakfast-programs.
---------------------------------------------------------------------------
For the next three school years, through SY 2026-2027,
schools will maintain current sodium limits (Sodium Target 1A for lunch
and Sodium Target 1 for breakfast).
By SY 2027-2028, schools must implement an approximate 10
percent reduction for breakfast and an approximate 15 percent reduction
for
[[Page 31997]]
lunch from current sodium limits, depending on the age/grade group.
The current sodium limit and the sodium reduction finalized in this
rulemaking are shown in the charts below. The current sodium limits for
school lunch and breakfast will remain in place through June 30, 2027.
Through the end of SY 2026-2027, schools will be able to maintain
Sodium Target 1A at lunch and Sodium Target 1 at breakfast. By July 1,
2027, schools must implement the sodium reduction shown in the chart
below. The sodium reduction for school lunch, which generally contains
higher amounts of sodium than breakfast, will be slightly larger
compared to the sodium reduction for school breakfast. This approach
allows school nutrition professionals to focus their sodium reduction
efforts on lunch.
[GRAPHIC] [TIFF OMITTED] TR25AP24.081
[GRAPHIC] [TIFF OMITTED] TR25AP24.082
These sodium limits apply, on average, to lunches and breakfasts
offered during a school week. Sodium limits do not apply per day, per
meal, or per menu item. A weekly average allows flexibility for menu
planners to occasionally offer higher sodium meals or menu items,
provided they are balanced with lower sodium meals and menu items
throughout the week.
While schools are not required to reduce sodium in school meals
until SY 2027-2028, USDA encourages schools to gradually reduce sodium
at lunch and breakfast prior to the required reduction. USDA encourages
school nutrition professionals to adjust food preparation methods,
gradually incorporate more lower sodium foods throughout the school
week and make menu adjustments to support eventual implementation of
the sodium reduction codified by this rulemaking.
As detailed in the Public Comments section, many respondents
suggested that USDA take a more gradual approach to sodium reduction
than proposed. For example, a professional organization representing
over 112,000 credentialed nutrition and dietetics practitioners
acknowledged the importance of reducing children's sodium intake but
recommended a smaller overall reduction at lunch compared to the
proposed rule and suggested providing additional time for
implementation. USDA agrees with comments that noted the importance of
gradually moving toward lower sodium meals in a way that is achievable
for schools and the food industry and has incorporated this feedback
into the sodium limits established by this final rule. USDA also
considered current sodium levels in the U.S. food supply and time
needed for product reformulation and for student palates to adjust. The
Dietary Guidelines, 2020-2025 also recognize that ``multiple strategies
should be implemented to reduce sodium intake'' across the U.S.
population.\76\ For example, the Dietary Guidelines acknowledge that
most sodium comes from salt added during commercial food processing and
preparation, and note that ``reducing sodium consumption will require a
joint effort by individuals, the food and beverage industry, and food
service and retail establishments.'' \77\ As a reflection of feedback
received from schools and industry partners, the sodium reduction for
school lunch and breakfast established by this final rule takes a more
gradual approach to lowering sodium compared to the proposed series of
limits. By finalizing a single sodium reduction for both school lunch
and breakfast, this rule gives schools and industry a clear endpoint to
work toward in the near-term.
---------------------------------------------------------------------------
\76\ See page 46. U.S. Department of Agriculture and U.S.
Department of Health and Human Services. 2020-2025 Dietary
Guidelines for Americans. 9th Edition. December 2020. Available at:
https://www.dietaryguidelines.gov/.
\77\ See page 46 and page 102. U.S. Department of Agriculture
and U.S. Department of Health and Human Services. 2020-2025 Dietary
Guidelines for Americans. 9th Edition. December 2020. Available at:
https://www.dietaryguidelines.gov/.
---------------------------------------------------------------------------
School nutrition professionals emphasized that sodium reductions
need to be gradual for schools to be successful and for students to
accept lower sodium meals and numerous respondents suggested that at
least three years are needed for product reformulation. USDA
incorporated this feedback into the sodium reduction implementation
date of July 1, 2027--over three years after the publication of this
final rule. Additionally, school
[[Page 31998]]
nutrition professionals, advocacy groups, and other respondents
encouraged USDA to study the impact of sodium reductions on student
participation in the school lunch and breakfast programs. Respondents
were concerned, for example, that students would choose to bring meals
from home instead of participating in the school lunch and breakfast
programs if sodium is further reduced in the programs. Therefore, in
response to requests from stakeholders, USDA will examine school meal
sodium reduction efforts and monitor student participation data.
As noted above, USDA received numerous comments referencing sodium
requirements from prior rulemakings--specifically, the 2012 final rule.
USDA considered these comments, as well as implementation of prior
rulemakings, to inform the sodium limits in this final rule. A
professional organization representing school nutrition professionals
in the Nation's largest school districts suggested that Sodium Target 2
from the 2012 rule could be achievable if food manufacturers have an
endpoint to work toward. This respondent did not recommend going beyond
Sodium Target 2 limits in this rulemaking. Another respondent cited
data suggesting that in SY 2014-2015, prior to the pandemic and related
supply chain challenges, the average school lunch was ``already well
below'' Sodium Target 1 and the average school breakfast was already
meeting Sodium Target 2. This is similar to findings discussed in FNS'
Successful Approaches to Reduce Sodium in School Meals study, conducted
prior to the pandemic in 2016 and 2017, which described ``a high rate
of success in meeting the Target 1 sodium standards,'' with many school
food authorities ``making significant progress toward or reaching
[Sodium] Target 2.'' \78\ A school district commenting on the proposed
rule maintained that they ``would be fine with the [Sodium] Target 2
guidelines,'' adding that Sodium Target 2 was ``achievable and students
enjoyed the food we provided prior to COVID.'' Another school district
agreed, suggesting that its ``sodium averages are currently at or below
[Sodium] Target 2 for both lunch and breakfast.'' However, this school
district noted that student feedback and product availability have
prevented decreases beyond Sodium Target 2. In response to prior
rulemakings stakeholders have also encouraged USDA to allow more time
for gradual sodium reduction, including recommending that USDA not go
beyond Sodium Target 2. Based on this feedback, USDA expects that
gradually phasing in limits that reflect the Sodium Target 2 will be
achievable for schools. This rulemaking gives schools and industry a
clear endpoint to work toward in the near-term, while providing
sufficient time for all stakeholders to prepare for implementation. It
also responds to proposed rule comments that suggested that Sodium
Target 2 levels are achievable, but that USDA not go beyond the Sodium
Target 2 limits in this rulemaking.
---------------------------------------------------------------------------
\78\ Gordon, E.L., Morrissey, N., Adams, E., Wieczorek, A.
Glenn, M.E., Burke, S & Connor, P. (2019). Successful Approaches to
Reduce Sodium in School Meals Final Report. Prepared by 2M Research
under Contract No. AG-3198-P-15-0040. Alexandria, VA: U.S.
Department of Agriculture, Food and Nutrition Service. Available at:
https://fns-prod.azureedge.us/sites/default/files/resource-files/Approaches-ReduceSodium-Volume1.pdf.
---------------------------------------------------------------------------
USDA also appreciates comments that supported sodium reduction in
school meals to benefit children's overall health. While this final
rule does not go as far as the proposed rule in reducing sodium, the
sodium limits finalized in this rulemaking represent significant
progress. The proposed sodium limits, which were informed by FDA's
voluntary sodium reduction goals, would have reduced sodium in school
lunches by 30 percent and school breakfasts by 20 percent. As detailed
in the proposed rule, to develop the proposed limits, USDA used the
average short-term FDA targets for foods commonly served in school
lunch and breakfast to calculate a baseline menu goal for weekly sodium
limits for each meal; this calculation resulted in an initial 10
percent reduction from the transitional sodium limits. The proposed
rule built on this initial reduction with two additional reductions at
lunch and one additional reduction at breakfast. USDA acknowledges that
many respondents supported sodium reduction beyond what was proposed.
However, many stakeholders, including school nutrition professionals
and industry, expressed concern about meeting sodium levels beyond
Sodium Target 2. The sodium limits finalized in this rule respond to
stakeholder feedback by considering concerns that respondents raised
around student acceptance of meals and the need for product
reformulation, which many respondents suggested takes about three
years.
This final rule reduces sodium in school lunch and breakfast by
approximately 15 percent and 10 percent, respectively, achieving or
surpassing the first proposed reduction informed by FDA's voluntary
sodium reduction goals while incorporating stakeholder input. The
sodium reduction finalized in this rule falls between the first and
second sodium reduction included in the proposed rule, and this final
rule gives school nutrition professionals additional time to reach the
new limits. The sodium limits finalized in this rulemaking also reflect
a prior limit that school nutrition professionals and industry are
familiar with and have worked toward in the past. As noted above, in SY
2014-2015, many school food authorities were making significant
progress toward meeting Sodium Target 2. A single sodium reduction for
the school lunch and breakfast programs responds to stakeholders who
suggested that one reduction for each program would be more attainable
for schools and industry compared to the proposed series of reductions
that would have spanned several years. Further, the implementation date
for sodium reduction aligns with the weekly dietary limit for added
sugars finalized in this rulemaking, allowing school nutrition
professionals to implement both changes at the same time, rather than
tracking multiple implementation dates.
USDA recognizes that continuing to reduce sodium in school meals is
important to improve nutrition security, and USDA will use information
from its forthcoming study to inform future sodium reduction efforts.
While schools and industry partners have made progress in sodium
reduction over the years, USDA acknowledges that there are
opportunities for improvement. The Dietary Guidelines also acknowledge
the importance of reducing sodium intake in achieving a healthy dietary
pattern.\79\ According to the Dietary Guidelines, over 95 percent of
children ages 2-18 exceed recommended sodium levels.\80\ Consistent
with the goals of the Dietary Guidelines, this final rule supports
efforts to improve children's dietary patterns by gradually reducing
sodium limits in school meals. Importantly, this final rule also
considers operational feasibility, such as the need for manufacturers
to reformulate products to support implementation of reduced sodium
limits. As detailed above, the Dietary Guidelines acknowledge that most
sodium consumed in the United States comes from salt added during
[[Page 31999]]
commercial processing, meaning that ``multiple strategies should be
implemented to reduce sodium intake to recommended limits.'' \81\ This
final rule represents a step toward that gradual, ongoing improvement;
USDA agrees with public comments that noted the importance of continual
progress toward reducing sodium in American's diets. Additionally, the
gradual approach to sodium reduction finalized in this rule aligns with
FDA goals and government-wide efforts to reduce sodium intake for the
U.S. population. USDA understands that complementary efforts to reduce
sodium across the entire U.S. food supply are important to the success
of school meal sodium reductions; these efforts are discussed in more
detail below, under Food and Drug Administration Voluntary Sodium
Reduction Goals. USDA is committed to supporting schools' efforts to
lower sodium, recognizing that reducing sodium intake is critical for
chronic disease prevention and children's health as they grow into
adulthood.
---------------------------------------------------------------------------
\79\ See page 76. U.S. Department of Agriculture and U.S.
Department of Health and Human Services. 2020-2025 Dietary
Guidelines for Americans. 9th Edition. December 2020. Available at:
https://www.dietaryguidelines.gov/.
\80\ See page 77. U.S. Department of Agriculture and U.S.
Department of Health and Human Services. 2020-2025 Dietary
Guidelines for Americans. 9th Edition. December 2020. Available at:
https://www.dietaryguidelines.gov/.
\81\ See page 46 and page 102. U.S. Department of Agriculture
and U.S. Department of Health and Human Services. 2020-2025 Dietary
Guidelines for Americans. 9th Edition. December 2020. Available at:
https://www.dietaryguidelines.gov/.
---------------------------------------------------------------------------
Food and Drug Administration Voluntary Sodium Reduction Goals
To develop the proposed rule and this final rule, USDA considered
FDA's voluntary sodium reduction goals, which aim to reduce sodium
across the U.S. food supply, in the context of school meals. FDA is
taking an iterative approach to sodium reduction, which involves
establishing sodium targets, monitoring progress, evaluating progress,
and engaging stakeholders. FDA recommended voluntary targets, issued in
October 2021, be met in 2.5 years and expects to issue revised
subsequent targets in the next few years to facilitate a gradual,
iterative process to reduce sodium intake. Similar in some respects to
FDA's short term sodium reduction targets, this final rule establishes
a single limit sodium reduction for both the school lunch and breakfast
programs for the near-term. Like FDA's efforts to monitor and evaluate
progress, as mentioned above, USDA will examine sodium reduction
efforts in school meals assess the potential impacts of these
reductions on program operations and participation.
USDA expects that the gradual approach to sodium reduction
finalized in this rule will set schools and students up for success, as
research \82\ indicates gradual sodium reductions are more acceptable
to consumers. Aligning school meal sodium limits with FDA's voluntary
sodium reduction goals may help support children's acceptance of school
lunches and breakfasts with less sodium, as the school meal reductions
will occur alongside sodium reductions in the broader U.S. food supply.
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\82\ McGuire S. Institute of Medicine. 2010. Strategies to
Reduce Sodium Intake in the United States. Washington, DC: The
National Academies Press. Adv Nutr. 2010 Nov;1(1):49-50. doi.org/10.3945/an.110.1002. Epub 2010 Nov 16. PMID: 22043452; PMCID:
PMC3042781.
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Naturally Occurring and ``Functional'' Sodium
In public comments, several respondents raised concerns about
naturally occurring sodium in foods such as bread, milk, and celery. As
noted above and in the proposed rule, the sodium limits in this
rulemaking are informed by FDA's voluntary sodium reduction goals. In
developing these goals, FDA ``carefully studied the range of popular
foods in today's marketplace to see what reductions are possible'' and
considered ``the many functions of sodium in food, including taste,
texture, microbial safety and stability.'' \83\ This means that FDA's
goals are not intended to focus on foods (e.g., milk) that contain only
naturally occurring sodium, but rather, to focus on foods where
actionable reductions in sodium are feasible. USDA appreciates public
comments about naturally occurring sodium in school meals. The sodium
limits in this final rule, which are informed by FDA's voluntary sodium
reduction goals, account for naturally occurring sodium levels in foods
and beverages in the current food supply.
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\83\ U.S. Food and Drug Administration. Sodium Reduction.
Available at: https://www.fda.gov/food/food-additives-petitions/sodium-reduction.
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In addition to public comments about naturally occurring sodium,
USDA appreciates public comments about ``functional'' sodium. Many
respondents requested that USDA account for ``functional'' sodium in
this rulemaking. This is similar to feedback included in Successful
Approaches to Reduce Sodium in School Meals, where manufacturers raised
concerns about ``functional'' sodium which plays a role in food shelf
life and spoilage.\84\ In particular, manufacturers worried that Sodium
Target 3 may be so low in sodium that it would affect their ability to
produce products such as bakery items, where sodium serves a functional
purpose (e.g., salt to strengthen gluten). As noted in the study, while
Sodium Target 2 seemed to be ``achievable'' by some manufacturers,
Sodium Target 3 was considered ``infeasible'' by nearly all
manufacturers, who raised concerns about the impact on food preparation
and storage.\85\ The Dietary Reference Intakes for Sodium and Potassium
\86\ also acknowledge the functional role sodium plays in the food
supply, indicating that ``the major sources of sodium in the diet come
from foods in which sodium chloride serves a functional purpose,
including baked goods, processed meats, and cheese.'' Similar to
examples cited in public comments, the Dietary Reference Intakes for
Sodium and Potassium point out that sodium plays a role in preserving
and fermenting foods, altering the texture of foods, and enhancing
flavor. However, based on the evidence available, the Dietary Reference
Intakes conclude that continued efforts to reduce sodium intake in the
population are warranted.
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\84\ Gordon, E.L., Morrissey, N., Adams, E., Wieczorek, A.
Glenn, M.E., Burke, S & Connor, P. (2019). Successful Approaches to
Reduce Sodium in School Meals Final Report. Prepared by 2M Research
under Contract No. AG-3198-P-15-0040. Alexandria, VA: U.S.
Department of Agriculture, Food and Nutrition Service. Available at:
https://www.fns.usda.gov/nslp/successful-approaches-reduce-sodium-school-meals-study.
\85\ Gordon, E.L., Morrissey, N., Adams, E., Wieczorek, A.
Glenn, M.E., Burke, S & Connor, P. (2019). Successful Approaches to
Reduce Sodium in School Meals, Volume II: Detailed Study Findings.
Prepared by 2M Research under Contract No. AG-3198-P-15-0040.
Alexandria, VA: U.S. Department of Agriculture, Food and Nutrition
Service. Available at: https://www.fns.usda.gov/nslp/successful-approaches-reduce-sodium-school-meals-study.
\86\ National Academies of Sciences, Engineering, and Medicine;
Health and Medicine Division; Food and Nutrition Board; Committee to
Review the Dietary Reference Intakes for Sodium and Potassium; Oria
M, Harrison M, Stallings VA, editors. Dietary Reference Intakes for
Sodium and Potassium. Washington (DC): National Academies Press
(US); 2019 Mar 5. 11, Sodium Dietary Reference Intakes: Risk
Characterization and Special Considerations for Public Health.
Available at: https://www.ncbi.nlm.nih.gov/books/NBK545448/#sec_ch11_2.
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USDA appreciates the concerns that respondents raised regarding
functional sodium. Respondents noted the role sodium plays in food
safety, texture, and flavor, and emphasized the importance of
considering these factors when determining sodium limits in the school
meal programs. USDA considered and accounted for these comments when
developing this final rule. Because the sodium limits finalized in this
rulemaking are higher than those included in the proposed rule, USDA
has concluded that the sodium limits in this final rule adequately
account for ``functional'' sodium content in foods offered in school
meals while still supporting efforts to reduce sodium intake among
children. Further, the sodium limits in this rule do not approach
Sodium Target 3, which manufacturers expressed
[[Page 32000]]
particular concern within the study Successful Approaches to Reduce
Sodium in School Meals, as noted above. Finally, as noted, these sodium
limits are informed by FDA's voluntary sodium reduction goals which
account for functional sodium levels in foods and beverages in the
current food supply. With these higher sodium limits, school nutrition
professionals will have room to include foods with naturally occurring
or ``functional'' sodium on their menus, including foods that are
popular among children.
In summary, the overall weekly sodium limits for school meals
finalized in this rule take into account levels of sodium needed to
accommodate continued service of healthful foods with naturally
occurring and functional sodium. Therefore, foods and beverages
containing naturally occurring and functional sodium are not exempt
from these sodium limits; rather, the sodium limits in this final rule
account for such forms of sodium. USDA estimates that under this rule,
schools will continue to be able to serve popular foods and beverages
containing naturally occurring and functional sodium with similar
frequency as they do currently. While this rulemaking gradually reduces
the overall weekly sodium levels in school meals, the limits finalized
in this rule allow for foods and beverages with naturally occurring and
functional sodium. USDA anticipates that manufacturers will continue to
explore all avenues of sodium reduction, including product
reformulation and new technologies to reduce sodium, and encourages
these efforts. As detailed below, USDA also expects that menu planners
will play an important role in gradually reducing sodium levels in
school meals over time. USDA anticipates that this gradual reduction in
weekly average sodium limits will continue to allow menu planners
flexibility to offer meals and menu items that children enjoy.
Ongoing Support for Sodium Reduction Implementation
Successfully reducing sodium in school meals will require the
commitment and dedication of all school meals stakeholders. For its
part, USDA remains committed to ensuring that menu planners receive the
support and technical assistance needed to offer students meals that
comply with the sodium limits in this rulemaking. USDA will evaluate
progress toward reducing sodium in school meals, as well as in the
broader food supply, on an ongoing basis. School nutrition
professionals advocated for more gradual sodium reductions to allow
menu planners time to modify menus and to give children's palates time
to adapt; this rule provides that additional time. Additionally, USDA
is committed to providing ongoing support to schools through efforts
like the HMI Initiative, Team Nutrition grants, Farm to School grants,
and tailored technical assistance. USDA welcomes stakeholder input on
successful strategies to reduce sodium in school meals, and the
additional assistance and guidance needed from USDA to support these
efforts. Further, USDA expects that planned research on sodium
reduction in school meals will help to inform future sodium reductions.
Best Practice Product-Based Sodium Limits
USDA appreciates comments that provided suggestions for best
practice product-based sodium limits. Consistent with the proposed
rule, this final rule does not require product-based sodium limits for
specific foods and beverages; however, USDA will issue guidance on best
practice product limits for high contributors of sodium in school meals
and will incorporate FDA's voluntary sodium reduction goals. This
guidance is intended to help schools procure lower sodium products for
their weekly lunch and breakfast menus. Best practice limits provided
in future guidance will be recommendations, not required limits.
Accordingly, this final rule establishes sodium limits found at 7
CFR 210.10(c) and (f)(4) and 7 CFR 220.8(c) and (f)(4) of the
regulations. As noted, schools will maintain existing sodium limits
(Sodium Target 1A at lunch and Sodium Target 1 at breakfast) through
June 30, 2027. Schools will not need to make any changes to comply with
the sodium provision of this final rule until July 1, 2027, when the
sodium reduction included in this final rule must be implemented.
Section 6: Meats/Meat Alternates at Breakfast
Current Requirement
Current regulations at 7 CFR 220.8(c)(2) require three food
components for a complete school breakfast: fruits, grains, and fluid
milk. There is no meats/meat alternates component required at
breakfast; therefore, under the current SBP meal pattern, a meat/meat
alternate offered at breakfast credits toward the weekly grains
requirement. Under current regulations, schools may substitute a 1.0
ounce equivalent of meat/meat alternate for a 1.0 ounce equivalent of
grains, after meeting the daily minimum grains requirement.\87\ Meats/
meat alternates \88\ may also be offered as ``extra'' food items at
breakfast. ``Extra'' food items are not part of the reimbursable school
meal, but do count toward the weekly dietary specifications for
calories, saturated fat, sodium, and trans fat.
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\87\ Under current regulations, the minimum daily grains
requirement for each age/grade group at breakfast is 1.0 ounce
equivalent.
\88\ ``Meat alternates'' include cheese, eggs, yogurt, nuts and
seeds, tofu and soy products, and beans and peas.
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Proposed Rule
In the 2020 proposed rule, USDA set forth a combined meats/meat
alternates and grains component. Under the proposal, schools would have
the option to serve meats/meat alternates, grains, or a combination of
both, depending on school and student preferences. The 2020 proposed
rule also proposed to remove the requirement for schools to offer 1.0
ounce equivalent of grains each day at breakfast. Instead, the daily
and weekly ounce equivalency requirements for the combined component
could be met with meats/meat alternates, grains, or a combination of
both.
Public Comments on 2020 Proposed Rule
USDA received 556 comments on the 2020 proposed rule about the
combined meats/meat alternates and grains component at breakfast, a
majority of which were categorized as ``mixed'' or ``other'' comments.
Overall, 95 comments supported the proposal, including 86 unique
comments, and 41 comments were opposed, including 38 unique comments.
Proponents, including State agencies, industry respondents,
advocacy groups, and school districts, asserted that a combined meats/
meat alternates and grains component would increase the variety of
appealing breakfast options available to schools. Proponents maintained
that this change would deliver protein-rich breakfasts that students
enjoy, which they argued could encourage student participation and
reduce food waste. One school district noted that parents and guardians
often request school breakfasts with more protein and less added
sugars. Other respondents agreed, noting that this change could
decrease the added sugars in school breakfasts.
Proponents maintained that the proposal would simplify regulations
and menu planning. Industry and advocacy groups that supported this
change asserted that the current minimum grains requirement is
burdensome and prevents some schools from offering meats/meat
alternates at
[[Page 32001]]
breakfast. One school district suggested this change would allow for
more creative menu planning. Others, including State agencies and
advocacy groups, provided examples of foods that schools could offer
more easily under this change, such as yogurt parfaits, turkey sausage,
and vegetable omelets. One respondent mentioned that protein-rich
breakfast sandwiches could be offered as grab-and-go items for
students. Another respondent noted that protein foods are ``a great way
to start the day'' and an option that students enjoy.
Some respondents, including advocacy groups and individuals, were
concerned that this change could lead to an increase in schools
offering meat products that are high in saturated fat and sodium.
Opponents suggested that consuming too much meat has adverse health
effects, and some advised USDA that ``processed meats should be very
limited or not consumed at all'' in school meals. Other respondents,
including industry respondents, cautioned against removing the minimum
grains requirement, citing the health benefits of grains and noting
that grains are an important source of fiber. However, proponents
emphasized that a wide variety of nutritious meats/meat alternates may
be offered in school breakfasts. Further, one advocacy group emphasized
that the current weekly saturated fat and sodium restrictions would
limit the amount of processed meat items. A school district agreed,
suggesting that the dietary specifications for calories, sodium, and
saturated fat already constrain the amount of animal fats that can be
offered each school week.
Some respondents offered modifications to the proposal. For
example, an individual argued that each school breakfast should require
grains and meats/meat alternates, while a State agency suggested USDA
allow schools to serve meats/meat alternates without a grain three
times per week, so that two times per week, schools must meet a minimum
grains requirement. An industry respondent suggested a minimum weekly
(rather than daily) grains requirement. Advocacy groups and individuals
suggested placing specific calorie and sodium limits on meats served at
breakfast; presumably, in addition to the weekly calorie and sodium
limits already in place for school breakfasts. While several
respondents noted that this proposal would help address concerns about
added sugars in school breakfast, some respondents, including a State
agency, recommended that USDA also place limits on specific grain items
that are high in added sugars.
Final Rule
This final rule codifies the combined grains and meats/meat
alternates meal component at breakfast and removes the requirement for
schools to offer 1.0 ounce equivalent of grains each day at breakfast.
Schools may offer grains, meats/meat alternates, or a combination of
both to meet this combined component requirement, based on ounce
equivalents. The minimum daily requirement (1.0 ounce equivalent) and
minimum weekly requirements (7.0-9.0 ounce equivalents, depending on
the age/grade group) for the combined component remains the same;
however, this rule allows schools to meet the daily and weekly
requirements by offering grains, meats/meat alternates, or a
combination of both to meet minimum ounce equivalents.
Schools are not required to make any changes to menus under this
provision. However, this change gives menu planners more flexibility
and options to plan breakfast menus that meet student preferences and
are compatible with meal service models, cost considerations, and other
local factors. Schools have discretion to decide what combination of
grains and/or meats/meat alternates to offer at breakfast to meet the
minimum ounce equivalents. The Dietary Guidelines recommend including
both grains and protein foods in healthy eating patterns.\89\ As such,
USDA encourages schools to offer a mix of grains and meats/meat
alternates at breakfast throughout the school week.
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\89\ The Dietary Guidelines include recommendations for ``food
groups--vegetables, fruits, grains, dairy, and protein foods--eaten
at an appropriate calorie level and in forms with limited amounts of
added sugars, saturated fat, and sodium''. U.S. Department of
Agriculture and U.S. Department of Health and Human Services.
Dietary Guidelines for Americans, 2020-2025. 9th Edition. December
2020. Available at: https://www.dietaryguidelines.gov/.
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USDA appreciates comments submitted in response to the 2020
proposed rule that highlighted the importance of reducing added sugars
in school meals. This feedback, and later feedback gathered through
USDA's stakeholder engagement campaign in summer 2022, informed USDA's
proposals to limit added sugars in school meals. USDA agrees with
respondents that allowing schools more flexibility to offer meats/meat
alternates at breakfast will support implementation of the new added
sugars limits outlined in Section 2: Added Sugars.
As discussed in Section 4: Whole Grains, at least 80 percent of the
weekly grains offered at school breakfast must be whole grain-rich, and
the remaining grain items offered may be whole grain-rich or enriched.
Schools that choose to offer a mix of grains and meats/meat alternates
at breakfast will calculate the required whole grain-rich offerings
based on the total amount of grains offered at breakfast during the
week, by ounce equivalents.
According to USDA's School Nutrition and Meal Cost Study,\90\ among
children who participate in the SBP as opposed to skipping breakfast or
eating at home, appealing food was among the top three reasons for
student participation. Relative to school lunch, current school
breakfast participation is low. As suggested by respondents, providing
school nutrition professionals with more flexibility to offer a variety
of breakfast foods that students enjoy could encourage student
participation. For example, this rule allows schools to offer scrambled
eggs, a fruit cup, and low-fat milk as a complete breakfast.
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\90\ See Table 5.2. Mean Percentage of Observed Trays including
Specific Foods and Mean Percentage of Food Wasted in SBP Breakfasts.
U.S. Department of Agriculture, Food and Nutrition Service, Office
of Policy Support, School Nutrition and Meal Cost Study, Final
Report Volume 4: Student Participation, Satisfaction, Plate Waste,
and Dietary Intakes by Mary Kay Fox, Elizabeth Gearan, Charlotte
Cabili, Dallas Dotter, Katherine Niland, Liana Washburn, Nora
Paxton, Lauren Olsho, Lindsay LeClair, and Vinh Tran. Project
Officer: John Endahl. Alexandria, VA: April 2019. Available at:
https://www.fns.usda.gov/school-nutrition-and-meal-cost-study.
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USDA understands concerns raised by some respondents regarding meat
products that are high in saturated fat and sodium. The dietary
specifications for calories, saturated fat, and sodium remain in place
under this rule, and as detailed in Section 5: Sodium, this rule
implements an additional sodium reduction in school meals. USDA agrees
with respondents that suggested that the dietary specifications
encourage schools to choose options that are low in saturated fat and
sodium. According to USDA's School Nutrition and Meal Cost Study, the
most common categories of meats/meat alternates offered in school
breakfasts in SY 2014-2015 were cheese and yogurt.\91\ USDA encourages
schools
[[Page 32002]]
opting to serve meats/meat alternates at breakfast to offer a wide
variety of nutrient-dense options, including vegetarian options such as
yogurt low in added sugars; \92\ breakfast bean burritos; and eggs.
USDA acknowledges respondent requests to limit ``processed meats'' in
the SBP. However, the dietary specifications for calories, saturated
fat, and sodium already limit the amount of meats with added salt that
are offered in school breakfasts. Schools must plan all meals to meet
the dietary specifications, and these limits provide schools with
flexibility to choose foods that meet student preferences while staying
within a framework that results in nutritious meals. USDA will not
restrict the types of meats permitted at breakfast, beyond existing
food crediting guidelines.
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\91\ The most common categories of meat/meat alternates offered
at breakfast in SY 2014-2015 were cheese (offered on 5.4 percent of
observed trays) and yogurt (offered on 5.0 percent of observed
trays). U.S. Department of Agriculture, Food and Nutrition Service,
Office of Policy Support, School Nutrition and Meal Cost Study,
Final Report Volume 2: Nutritional Characteristics of School Meals
by Elizabeth Gearan, Mary Kay Fox, Katherine Niland, Dallas Dotter,
Liana Washburn, Patricia Connor, Lauren Olsho, and Tara Wommak.
Project Officer: John Endahl. Alexandria, VA: April 2019. Available
at: https://www.fns.usda.gov/school-nutrition-and-meal-cost-study.
\92\ Please see Section 2: Added Sugars, for information on the
new added sugars limit for yogurt, which will take effect in SY
2025-2026.
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This provision does not change the breakfast meal pattern
requirements for preschool students. Under 7 CFR 220.8(o), schools
serving breakfasts to children ages 1 through 4 may substitute meats/
meat alternates for the entire grains component up to three times per
week. However, schools are reminded of the existing co-mingling
flexibilities, permitted in USDA guidance.\93\ Schools that serve meals
to preschoolers and K-5 students in the same meal service area at the
same time may choose to serve the K-5 breakfast meal pattern under 7
CFR 220.8 to both groups of children.
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\93\ U.S. Department of Agriculture. Flexibility for Co-Mingled
Preschool Meals: Questions and Answers, June 30, 2017. Available at:
https://www.fns.usda.gov/school-meals/flexibility-co-mingled-preschool-meals-questions-and-answers.
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Accordingly, this final rule amends 7 CFR 220.8(c) introductory
text and (c)(2), to codify the combined grains and meats/meat
alternates component at breakfast and to remove the requirement for
schools to offer 1.0 ounce equivalent of grains each day at breakfast.
This change provides schools with more menu planning flexibility at
breakfast. Schools are not required to change menus or operations as a
result of this provision.
Section 7: Substituting Vegetables for Grains in Tribal Communities
Current Requirement
Current regulations at 7 CFR 210.10(c)(3), 220.8(c)(3),
225.16(f)(3), and 226.20(f) allow program operators in American Samoa,
Puerto Rico, and the U.S. Virgin Islands to serve vegetables such as
yams, plantains, or sweet potatoes to meet the grains or breads
component.\94\ Additionally, this option is currently available to SFSP
and CACFP sponsors, institutions, and facilities in Guam. The option to
substitute vegetables for grains or breads is intended to accommodate
cultural food preferences and to address product availability and cost
concerns in these outlying areas.
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\94\ Current SFSP regulations at 7 CFR 225.15(f)(3) also allow
sponsors in Trust Territory of the Pacific Islands, and the Northern
Mariana Islands to substitute vegetables for breads. However, these
references are outdated.
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As detailed in Section 1: Background, USDA sought stakeholder input
when developing the proposed rule. As part of this effort, USDA
conducted listening sessions with Tribal leaders, nutritionists, and
schools in summer 2022. During these listening sessions, Tribal
nutritionists and schools expressed concern that the grains
requirements are a poor nutritional match for Indigenous children
because grains, such as wheat and flour, were not traditionally a part
of their ancestors' diets. Tribal nutritionists and schools requested
Indigenous starchy vegetables be allowed as a grain substitute, similar
to the current option available for child nutrition program operators
in American Samoa, Puerto Rico, and the U.S. Virgin Islands, and for
SFSP and CACFP sponsors, institutions, and facilities in Guam.
Proposed Rule
In response to stakeholder input, USDA proposed to add tribally
operated schools, schools operated by the Bureau of Indian Education,
and schools serving primarily American Indian or Alaska Native children
to the list of schools at 7 CFR 210.10(c)(3) and 220.8(c)(3) that may
serve vegetables to meet the grains requirements. For SFSP and CACFP,
USDA proposed to revise 7 CFR 225.16(f)(3) and 226.20(f) to allow
sponsors, institutions, and facilities, as applicable, that serve
primarily American Indian or Alaska Native children to substitute
vegetables for breads or grains. USDA also proposed to revise the
current regulatory text for NSLP, SBP, SFSP, and CACFP to clarify that
this provision allows the substitution of traditional Indigenous
vegetables, such as prairie turnips. In the proposed SFSP regulatory
text, USDA also removed outdated references to the Trust Territory of
the Pacific Islands and the Northern Mariana Islands. Finally, USDA
proposed to allow all schools, sponsors, institutions, and facilities
in Guam and Hawaii to substitute vegetables for grains or breads, to
reflect cultural food preferences.
Public Comments
USDA received 264 comments on this proposal, including 143 unique
comments. Of these, 104 supported the proposal, including 65 unique
comments, none were opposed, and 154 were mixed, including 78 unique
comments. School nutrition professionals, advocacy groups, professional
organizations, State agencies, and individuals submitted comments on
the proposal.
Several respondents, including a national organization representing
tens of thousands of school nutrition professionals, an advocacy group,
State agencies, individuals, and a form letter campaign, supported the
proposal. One individual emphasized the importance of recognizing
children's personal, cultural, and traditional dietary preferences.
Another individual stated that offering diverse and inclusive meal
options promotes belonging and contributes to children's overall
wellbeing. This respondent further emphasized the importance of
``taking steps toward embracing our differences, celebrating our
diversity, and providing meals that mirror the rich tapestry of
cultures represented within our school communities.'' One advocacy
group supported the proposal, suggesting that it would ``provide
equitable access and outcomes to American Indian and Alaska Native
communities and children.'' A State agency described the proposal as a
``nutritional benefit.'' A professional organization affirmed that
serving culturally responsive meals and snacks is an equitable practice
that may improve meal consumption and strengthen relationships between
providers, families, and participants.
Some respondents provided feedback about USDA's proposal to allow
program operators in Guam and Hawaii to substitute vegetables for
grains or breads. An advocacy group applauded USDA for expanding this
option to program operators in Guam and Hawaii. One professional
organization encouraged USDA to further accommodate the cultural food
preferences of Native Hawaiians. A few other respondents expressed
confusion about how the proposal for Guam and Hawaii would interact
with the proposal for child nutrition program operators on the mainland
that serve primarily American Indian and Alaska Native children. To
clarify, USDA proposed to expand this option to all schools, sponsors,
institutions, and facilities in Guam and Hawaii. Under the proposed
rule, the option to substitute vegetables for grains or breads would be
available to any child nutrition program operator
[[Page 32003]]
located in Guam or Hawaii. In addition, under the proposed rule,
program operators on the mainland that serve primarily American Indian
or Alaska Native children would be eligible to use this option.
Several respondents suggested expanding the proposal, in most
cases, advocating for all schools, sponsors, institutions, and
facilities to be allowed to substitute vegetables for grains or breads,
regardless of their location or participant demographics. One advocacy
group suggested expanding the menu planning option to participants from
other demographic groups who consume starchy vegetables in place of
grains. Going further, a dietitian suggested that expanding the option
to all schools, sponsors, institutions, and facilities would eliminate
confusion in menu planning. An advocacy group agreed, asserting that
vegetable consumption is lacking among all children and that allowing
this option for all sites would help reduce sugar, especially at
breakfast. A professional organization supported expanding this
provision to all schools to avoid excluding any students. An advocacy
group agreed, noting that the vast majority of American Indian and
Alaska Native children attend public schools that are not tribally
operated or majority American Indian or Alaska Native. This respondent
concluded that, as proposed, the option may not have its intended
impact. A few other respondents raised concerns about the limited focus
of the provision, but instead of expanding it, recommended not
finalizing it. For example, a State agency acknowledged the importance
of offering culturally appropriate foods in the child nutrition
programs but raised equity concerns given the narrow focus of the
provision; this State agency cautioned against finalizing the proposal.
A school nutrition professional claimed that, as proposed, this menu
planning option would create division and confusion regarding who can
implement the provision. A few respondents offered other suggestions. A
form letter suggested that USDA require vegetables offered in place of
grains to be prepared in ways that align with traditional preparations,
such as baking or boiling. A professional organization suggested that
USDA limit substitutions under this provision to starchy vegetables
only. This respondent also advocated for more prescriptive language on
this provision's eligibility criteria to preserve program integrity and
ensure the intended populations are served.
Some respondents requested clarification or additional support. A
few respondents, including a State agency and professional
organization, requested guidance to support implementation of this
provision, including guidance on determining whether a program operator
qualifies to use this option. A professional organization expressed
concerns about possible administrative burden, specifically for
enrolled CACFP sites, further advocating for this provision to be
expanded to all program operators. This respondent argued that
expanding this option to all operators would prevent administrative
burden and promote inclusivity. A form letter campaign did not cite any
specific concerns, but asked USDA to ensure that the administrative
burden associated with enacting the change will be minimal. A State
agency asked for clarification on whether the menu planning option
applies to the infant meal pattern. This respondent did not support
allowing this option for infants, explaining that allowing vegetables
to substitute for other food sources in the infant meal pattern, such
as infant cereal, may reduce critical sources of iron in an infant's
diet. Another State agency asserted that USDA would need to provide
clear guidance about the serving sizes of vegetables that would be
required to meet the grains requirements.
In the proposed rule, USDA explained that the list of vegetables
included in the proposed regulatory text was not exhaustive. However,
USDA encouraged public input on any other vegetables that should be
listed as examples in the regulatory text, and some respondents shared
feedback. Several advocacy groups suggested that squash, cassava
(yuca), and taro would be suitable substitutions for grains and
recommended including them as examples. A State agency suggested that
Native Hawaiian traditional vegetables such as taro, poi, breadfruit,
Okinawan sweet potato, and Molokai sweet potato be included in the
regulatory text as examples of vegetables that may be substituted for
grains. One professional organization asked USDA to clarify whether all
vegetables can be substituted for grains. Another proponent recommended
that instead of allowing any vegetable to substitute for grains, as
proposed, that USDA set standards about which vegetable subgroups can
be substituted for grains to ensure that the vegetables are
nutritionally comparable to grains.
In addition to general feedback on the proposal, USDA requested
public input on additional menu planning options that would improve the
school meal programs for American Indian and Alaska Native children by
asking the following question:
Are there other specific areas of the school meal pattern
that present challenges to serving culturally appropriate meals for
American Indian and Alaska Native children, specifically regarding any
regulatory requirements in 7 CFR 210.10 and 220.8?
A few respondents provided input on specific areas of the school
meal patterns that present challenges to serving culturally appropriate
meals. One State agency identified that barriers to serving hunted game
meats make it challenging to serve culturally appropriate meals to
American Indian and Alaska Native children. This respondent also
mentioned that milk is not a part of the traditional eating pattern for
American Indian and Alaska Native communities. Similarly, an individual
stated the milk requirement is challenging to implement due to the high
prevalence of lactose intolerance among American Indian and Alaska
Native populations. Other respondents mentioned challenges with food
crediting. A State agency encouraged USDA to ``simplify the crediting
process for scratch-cooked meals'' to incentivize schools to scratch
cook culturally relevant meals. Similarly, an advocacy group suggested
USDA consider a ``simplified'' crediting model that would facilitate
scratch cooking and procurement of minimally processed products.
Lastly, a form letter campaign voiced concerns about the potential for
additional, case-by-case menu planning options due to the
administrative burden of such a process. Instead, this form letter
recommended that USDA address any barriers to serving culturally
appropriate meals through comprehensive changes to the meal patterns.
Final Rule
The final rule amends 7 CFR 210.10(c)(3) and 220.8(c)(3) to allow
school food authorities and schools that are tribally operated,
operated by the Bureau of Indian Education, and that serve primarily
American Indian or Alaska Native children to serve vegetables to meet
the grains requirement in NSLP and SBP. For SFSP and CACFP, USDA
finalizes the proposal to revise 7 CFR 225.16(f)(3) and 226.20(f) to
allow sponsors, institutions, and facilities, as applicable, that serve
primarily American Indian or Alaska Native participants to substitute
vegetables for grains or breads. Additionally, this final rule allows
all schools, sponsors, institutions, and facilities in Guam and Hawaii
to serve vegetables to meet the grains or breads
[[Page 32004]]
requirement, and in the SFSP regulatory text, removes outdated
references to the Trust Territory of the Pacific Islands and the
Northern Mariana Islands. Lastly, for all child nutrition programs
applicable to this provision, this final rule clarifies that any
creditable vegetable can be substituted for grains or breads.
While the proposed rule only listed ``schools'' in the NSLP and SBP
regulatory text, this final rule clarifies that this option is
available to ``school food authorities and schools'' that qualify. This
change responds to comments that encouraged USDA to ensure that the
administrative burden associated with enacting the change is minimal.
By allowing implementation at the school food authority level, this
final rule simplifies use of this option for school food authorities
that qualify and reduces the documentation burden. Instead of
maintaining documentation for all qualifying schools, school food
authorities that qualify would maintain documentation at the school
food authority level.
Program operators in Guam and Hawaii are not required to submit a
request for approval to use this menu planning option; it is
automatically available to any school, sponsor, institution, or
facility in Guam or Hawaii that chooses to use it. Therefore, upon
implementation of this final rule, all schools, sponsors, institutions,
and facilities located in American Samoa, Guam, Hawaii, Puerto Rico, or
the U.S. Virgin Islands are eligible for this option; it is not
necessary for program operators in these specific areas to maintain
documentation to demonstrate eligibility for this option. However,
school food authorities or schools that are tribally operated, operated
by the Bureau of Indian Education, or program operators that serve
primarily American Indian or Alaska Native children must maintain
documentation to demonstrate that they qualify if they choose to use
this option.
For the NSLP and SBP, the school food authority is responsible for
maintaining documentation to demonstrate that the school food authority
or its schools qualify to use this option. If the school food authority
is tribally operated, is operated by the Bureau of Indian Education, or
serves primarily American Indian or Alaska Native students, then the
school food authority would maintain school food authority-level
documentation of eligibility. If individual schools within the school
food authority qualify for this option, then the school food authority
would maintain documentation for its qualifying schools, as applicable.
As described in the proposed rule, school food authorities or schools
``serving primarily American Indian or Alaska Native children'' include
school food authorities or schools where American Indian or Alaska
Native children represent the largest demographic group of enrolled
children. USDA will issue guidance on acceptable data that can be used
to report student demographics, which may include participant self-
reporting, school data, or census data. School food authorities must
maintain this documentation for program reviews. For example:
For school food authorities that are tribally operated or
operated by the Bureau of Indian Education, an example of documentation
is a certifying statement indicating the school food authority is
tribally operated or operated by the Bureau of Indian Education.
For schools serving primarily American Indian or Alaska
Native children, an example of documentation may be aggregate data of
student demographics, such as participant self-reporting, school data,
or census data.
For the SFSP and CACFP, a sponsor, institution, or facility that
chooses to use this menu planning option must maintain documentation
demonstrating that the site serves primarily American Indian or Alaska
Native participants. USDA will issue guidance on acceptable data that
can be used to report participant demographics, which may include
participant self-reporting, school data, or census data. For example:
For enrolled sites, the sponsor, institution, or facility
determines, based on participant self-reporting, that American Indian
or Alaska Native participants represent the largest demographic group
of enrolled participants.
For enrolled sites, the sponsor, institution, or facility
provides a certifying statement indicating that the site primarily
serves American Indian or Alaska Native participants.
For non-enrolled sites, the sponsor, institution, or
facility determines that American Indian or Alaska Native participants
represent the largest demographic group of participants served by the
site, based on school or census data.
This final rule allows any vegetable to substitute for the grains
or bread component. However, USDA emphasizes the importance of
traditional and culturally relevant vegetables, and this final rule
provides examples of traditional and cultural vegetables, such as
prairie turnips and breadfruit, in the revised regulatory text at 7 CFR
210.10(c)(3), 220.8(c)(3), 225.16(f)(3), and 226.20(f). Respondents
provided examples such as squash, cassava (yuca), and taro, all of
which would be traditional and culturally relevant vegetables that may
substitute for grains or breads under the final rule.
Some respondents asked USDA to establish vegetable subgroup
requirements for the provision, or to limit this provision to
vegetables prepared in specific ways. USDA is not requiring specific
vegetable subgroups or types of preparation in this final rule to
minimize burden for program operators that choose to use this
flexibility. This approach is imperative for program operators of the
SFSP and CACFP because SFSP and CACFP meal patterns do not require
vegetable subgroups and a vegetable subgroup requirement for this
provision could create barriers to implementation in these programs.
Allowing program operators the flexibility to offer vegetables from any
subgroup in place of grains or breads allows for a variety of
vegetables to be offered, many of which are underconsumed among all
populations.\95\
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\95\ According to the Dietary Guidelines, ``Almost 90 percent of
the U.S. population does not meet the recommendation for vegetables.
In addition, with few exceptions, the U.S. population does not meet
intake recommendations for any of the vegetable subgroups.''
Further, according to the Dietary Guidelines, ``For most
individuals, following a healthy eating pattern will require an
increase in total vegetable intake and from all vegetable subgroups,
shifting to nutrient-dense forms, and an increase in the variety of
different vegetables consumed over time.'' See page 31. U.S.
Department of Agriculture and U.S. Department of Health and Human
Services. 2020-2025 Dietary Guidelines for Americans. 9th Edition.
December 2020. Available at: https://www.dietaryguidelines.gov/.
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A few respondents requested clarification on specific questions. A
State agency requested clarification on whether this option would be
applicable to the infant meal pattern. This rule does extend the option
to the infant meal pattern. Extending the option to substitute
vegetables for grains in the infant meal pattern allows infants to also
consume foods, and develop taste preferences, aligned with an
Indigenous diet. USDA recognizes the concern that allowing this
flexibility for infants could result in a reduced consumption of
critical nutrients, such as iron. However, the infant meal pattern
allows a variety of foods to meet the required food components for
meals and snacks, and only currently requires a grain item at snack
when a child is developmentally ready to accept those foods. Allowing
sponsors, institutions, and facilities to serve culturally responsive
meals and snacks can improve meal consumption and strengthen
relationships between providers, families, and participants.
[[Page 32005]]
USDA appreciates public feedback on the menu planning options for
American Indian and Alaska Native children. Overall, respondents
expressed appreciation for USDA's efforts to improve the child
nutrition programs for American Indian or Alaska Native children. In
addition to these supportive comments, several respondents recommended
that USDA expand the proposed menu planning option to more, or even
all, child nutrition program operators. USDA acknowledges that
additional schools, sponsors, institutions, and facilities may benefit
from this provision and appreciates this feedback. However, as
proposed, this provision was intended for certain schools, sponsors,
institutions, and facilities. Other program operators that were not
covered by the proposal, as well as State agencies responsible for
program monitoring, did not have the opportunity to provide public
comment on a potential broader change. With the exception of clarifying
that this option may be applied at the school food authority level,
this final rule does not expand this option to additional program
operators, beyond those covered by the proposed rule.
This final rule is intended to support American Indian or Alaska
Native participants in child nutrition programs and to uphold USDA's
commitment to advancing equity, as detailed in the Department's Equity
Action Plan.\96\ In this plan, USDA outlines its commitment to
advancing equity, including a focus on increasing Tribal trust. The
Equity Action Plan highlights the importance of considering policy
design and implementation to ensure Tribal communities have equitable
access to Federal programs and services, including incorporating
Indigenous values and perspectives in program design and delivery.
While this final rule does not have as broad of a reach as some
respondents requested, USDA remains committed to promoting equitable
access to the child nutrition programs. USDA will continue to work with
its partners to make the child nutrition programs more inclusive for
all child and adult participants.
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\96\ U.S. Department of Agriculture, USDA Equity Action Plan in
Support of Executive Order (E.O.) 13985 Advancing Racial Equity and
Support for Underserved Communities through the Federal Government,
February 10, 2022. Available at: https://www.usda.gov/equity/action-plan.
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Accordingly, this final rule amends 7 CFR 210.10(c)(3) and
220.8(c)(3), to allow school food authorities and schools that are
tribally operated, operated by the Bureau of Indian Education, and that
serve primarily American Indian or Alaska Native children to the list
of schools \97\ that may serve vegetables to meet the grains
requirement. For SFSP and CACFP, this final rule amends 7 CFR
225.16(f)(3) and 226.20(f) to allow sponsors, institutions, and
facilities, as applicable, that serve primarily American Indian or
Alaska Native participants to substitute vegetables for grains or
breads. This final rule also amends 7 CFR 210.10(c)(3), 220.8(c)(3),
225.16(f)(3), and 226.20(f) to allow all schools, sponsors,
institutions, and facilities in Guam and Hawaii to serve vegetables to
meet the grains or breads requirement. These changes provide child
nutrition program operators an optional menu planning flexibility.
Program operators are not required to change menus or operations as a
result of this provision.
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\97\ As noted above, USDA currently allows schools in American
Samoa, Puerto Rico, and the U.S. Virgin Islands to serve vegetables
such as yams, plantains, or sweet potatoes to meet the grains
component. See 7 CFR 210.10(c)(3) and 220.8(c)(3).
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Section 8: Traditional Indigenous Foods
Current Requirement
Information about crediting foods in the school meal programs is
primarily shared with program operators through USDA guidance, not
through regulation. While traditional Indigenous foods are not
explicitly mentioned in the school lunch and breakfast program
regulations, they may be served in reimbursable school meals in
accordance with USDA guidance.
USDA does not define the term ``traditional foods;'' however, the
Agriculture Improvement Act of 2014, as amended (25 U.S.C. 1685(b)(5))
defines traditional food as ``food that has traditionally been prepared
and consumed by an [American] Indian tribe'' and includes the following
example foods in its definition: wild game meat, fish, seafood, marine
mammals, plants, and berries. USDA acknowledges that there are 574
federally recognized Tribes in the U.S. and appreciates the importance
of recognizing the diversity of American Indian and Alaska Native
cultures and traditions, including food traditions.
In 2015, USDA issued policy guidance \98\ about serving traditional
Indigenous foods in the child nutrition programs. This guidance
explained that if a food is served as part of a reimbursable meal, but
not listed in the Food Buying Guide for Child Nutrition Programs (Food
Buying Guide), the yield information of a similar food or in-house
yield \99\ may be used to determine a food's contribution toward meal
pattern requirements. The 2015 guidance also explained how to credit
certain traditional foods, such as wild rice, blue cornmeal, and ground
buffalo. In 2023, this guidance, titled Crediting Traditional
Indigenous Foods in Child Nutrition Programs, was revised to further
clarify how to credit traditional Indigenous foods and to expand the
list of traditional Indigenous foods that credit similarly to products
already listed in the Food Buying Guide. Additional resources, such as
USDA's fact sheet, Bringing Tribal Foods and Traditions into
Cafeterias, Classrooms, and Gardens \100\ encourage schools to
incorporate traditional Indigenous foods in school menus.
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\98\ U.S. Department of Agriculture, Child Nutrition Programs
and Traditional Foods, July 15, 2015. Available at: https://www.fns.usda.gov/cn/child-nutrition-programs-and-traditional-foods.
\99\ Information on calculating in-house yield data may be found
on page I-5 of the Food Buying Guide.
\100\ U.S. Department of Agriculture, Bringing Tribal Foods and
Traditions Into Cafeterias, Classrooms, and Gardens, August 2017.
Available at: https://www.fns.usda.gov/f2s/tribal-foods.
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Proposed Rule
USDA proposed to explicitly state in regulation that traditional
foods may be served in reimbursable school meals. The intent of this
proposal was to emphasize USDA's support for integrating traditional
Indigenous foods into the school meal programs. While many traditional
Indigenous foods may already be served in the programs under existing
USDA guidance, USDA expected that this regulatory change would help to
address the perception that traditional foods are not creditable, draw
attention to the option to serve traditional Indigenous foods, and
support local efforts to incorporate traditional Indigenous foods into
school meals.
Public Comments
USDA received over 200 comments on the proposal to add
``traditional foods'' to the regulatory text. Of these, 168 supported
the proposal, including 68 unique comments. While only one respondent
requested no changes, 70 respondents, including 50 unique comments,
provided additional feedback on the proposal.
Many respondents, including State agencies, advocacy groups, a
national organization representing tens of thousands of school
nutrition professionals, school districts, a form letter campaign, and
individuals, expressed support for the traditional foods provision and
including traditional Indigenous foods in school meals. One proponent
explained that including traditional foods in school
[[Page 32006]]
meals allows Indigenous children to meet their nutritional needs in a
way that connects them with their culture. Another proponent emphasized
the importance of connecting children with traditional foods and
supported greater inclusion of traditional foods to help address health
disparities. An advocacy group suggested the proposal would provide
clarity and support to schools that want to incorporate traditional
foods into their menus. An individual stated the proposal is important
because ``school meals should reflect the cultural heritage and values
of the students they serve.'' Similarly, an advocacy group suggested
that the proposal would encourage schools to offer more traditional
foods, which can increase school meal participation and honor students'
cultural traditions. Another advocacy group stated the proposal
represents ``progress toward making school meals standards more
equitable.''
Several respondents recommended that USDA broaden the scope of this
provision. For example, a school district and an advocacy group
recommended that USDA encourage all schools to offer foods considered
traditional to all cultures, not just American Indian and Alaska Native
communities. Similarly, several advocacy groups suggested that USDA
consider additional ways meal pattern requirements can be more
inclusive of all students' ethnicities and cultural backgrounds. One
advocacy group encouraged USDA to provide training and technical
assistance, such as guidance, menus, and recipes, to support the
inclusion of foods traditional to a variety of cultures. Another
advocacy group stated that more culturally relevant menu planning
resources would ``support the breadth of diverse traditions and
cultures across our nation.''
A few proponents offered suggestions to help schools fully realize
the intent of this change. An advocacy group suggested that USDA seek
broad input from community members to ensure culturally relevant foods
are included in the school meal programs without unnecessary barriers.
A form letter campaign encouraged USDA to engage American Indian and
Alaska Native communities when implementing this provision and stated
that the expansion of traditional and cultural meal options would
advance racial equity. An advocacy group suggested USDA ensure that
``traditional foods are readily available in USDA foods, particularly
through Tribal producers.''
In addition to requesting general feedback on the proposal, USDA
requested public input on the following questions:
USDA has provided guidance \101\ on crediting certain
traditional foods. Are there any other traditional foods that schools
would like to serve, but are having difficulty serving? If so, what
specific challenges are preventing schools from serving these foods?
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\101\ U.S. Department of Agriculture, Child Nutrition Programs
and Traditional Foods, July 15, 2015. Available at: https://www.fns.usda.gov/cn/child-nutrition-programs-and-traditional-foods.
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Which traditional foods should USDA provide yield
information for and incorporate into the Food Buying Guide?
Is ``traditional foods,'' as described in the Agriculture
Improvement Act of 2014, as amended (25 U.S.C. 1685(b)(5)), an
appropriate term to use, or do stakeholders recommend a different term?
A few respondents provided input on the first question regarding
traditional foods that are challenging to serve. A State agency noted
that hunted game, foraged fruits, and freshly caught fish are
challenging to serve due to local, State, and Federal food safety
requirements. Another State agency provided feedback from a Tribal
school in their State; the Tribal school explained that they cannot
purchase venison from their local vendor and cited challenges serving
maple syrup harvested by community members. One school nutrition
professional mentioned that they have no difficulty serving traditional
foods in their local area.
Several respondents provided input on the second question, asking
which traditional foods USDA should consider adding to the Food Buying
Guide. A professional organization suggested USDA add wild game
including moose, reindeer, and caribou; plants such as kelp and Eskimo
potatoes; and fruits such as salmonberries. This respondent described
these foods as nutritious and affirmed that these specific foods are
important cultural foods for Alaska Native students. A State agency
listed whitefish, walleye, and hickory nuts as traditional foods to be
added to the Food Buying Guide. In a few cases, respondents recommended
adding items that are already included in the Food Buying Guide, such
as cranberries, chestnuts, venison, and bison.
Some respondents suggested adding foods traditional to other
cultures to the Food Buying Guide. One advocacy group recommended USDA
expand the definition of traditional foods to include all cultures and
provided several suggestions of foods to add, including bacalao (dried
and salted codfish), broccoflower, chorizo, crowder peas,
huckleberries, naan, smoked eel, and ulu. A school nutrition
professional suggested adding Caribbean, Indian, and Asian foods to the
Food Buying Guide. A few advocacy groups recommended adding bone broth,
nori (dried, edible seaweed), pupusas, arepas, yucca, and curry dishes.
Another respondent suggested that USDA credit breadfruit and taro as
grains and cited their nutritional benefits. An individual and an
advocacy group provided a list of native Hawaiian foods to include,
such as purple sweet potato, taro, poi, seaweed, and coconut. For
clarification, coconut, seaweed, poi, breadfruit, and taro are already
included in the Food Buying Guide.
A few respondents provided input on the third question, which asked
whether ``traditional foods,'' as defined in the Agriculture
Improvement Act of 2014, as amended (25 U.S.C. 1685(b)(5)), is an
appropriate term to use in regulation. An advocacy group and a few
State agencies expressed support for the term ``traditional foods'' as
defined in the Agricultural Improvement Act of 2014. Another State
agency acknowledged the importance of cultural foods in school meals
but noted that foods considered to be ``traditional'' may have changed
over time and questioned use of this term in the regulation. An
individual recommended that foods traditional to Native Hawaiians be
considered ``traditional foods'' for the purpose of the regulation. A
professional organization encouraged USDA to expand its use of the term
``traditional foods'' to include other cultures, stating that
``traditional foods should not be limited to those consumed by an
American Indian Tribe but be inclusive of other diverse cultures.'' A
State agency supported inclusion of traditional foods and emphasized
the importance of a clear explanation of what qualifies as a
traditional food.
Oral comments were submitted during a Tribal Consultation conducted
by USDA with Tribal leaders in spring 2023. During this session, many
participants expressed support for the term ``traditional foods'' as
defined in the Agricultural Improvement Act of 2014 and as used in this
provision. One Tribal leader mentioned that this term is recognizable
among many Tribes. Consultation participants provided additional input
on school meals. One Tribal leader acknowledged the challenge in
establishing nutrition requirements that accommodate all communities
because all Tribes are different. Another participant expressed
concerns about added sugars and risk for diabetes and other chronic
diseases among the American Indian and Alaska
[[Page 32007]]
Native populations. This participant claimed that in their view,
improving the nutritional quality of school meals is a greater concern
than serving traditional foods. Additionally, Tribal leaders cited meal
costs and reimbursement rates as barriers to including more traditional
foods in school menus.
Final Rule
This final rule codifies the proposal to explicitly state in
regulation that traditional Indigenous foods may be served in
reimbursable school meals. Regulations at 7 CFR 210.10(c)(7) and
220.8(c)(4) will include the definition of traditional foods from the
Agriculture Improvement Act of 2014, as amended (25 U.S.C. 1685(b)(5)),
which defines traditional food as ``food that has traditionally been
prepared and consumed by an [American] Indian tribe,'' including wild
game meat, fish, seafood, marine mammals, plants, and berries. As with
all other foods offered in school meals, traditional Indigenous foods
will continue to be subject to meal pattern requirements, including the
weekly dietary specifications. While the proposed rule used the term
``traditional foods,'' in this final rule, USDA uses the term
``traditional Indigenous foods'' to better communicate the focus of
this provision.
USDA appreciates public comments received in response to this
provision and feedback that stakeholders provided on serving
traditional Indigenous foods in school meals. USDA recognizes that
stakeholders support diversity in the child nutrition programs,
including offering foods that are significant to students of all
cultural backgrounds. As discussed in Section 14: Meal Modifications,
USDA supports efforts to consider participant preferences when planning
and preparing meals, including cultural food preferences. However, for
this specific provision, USDA will use the term ``traditional
Indigenous foods'' and use the definition of ``traditional foods'' from
the Agriculture Improvement Act of 2014 and as referenced in the
proposed rule. Food sovereignty and traditional foodways are critical
in empowering Tribal communities' self-determination and incorporating
American Indian and Alaska Native perspectives into USDA's nutrition
assistance programs. USDA will continue to encourage program operators
to develop menus that are culturally appropriate for all populations
and that meet the needs of their communities. USDA's partnership with
the Institute of Child Nutrition offers resources, such as the Child
Nutrition Recipe Box and additional training materials, to support the
integration of cultural foods in child nutrition programs.
Additionally, USDA Foods in Schools provides a list of Available Foods
each school year for program operators to purchase locally grown and
produced foods.\102\
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\102\ U.S. Department of Agriculture. USDA Foods Available Foods
List for SY 2024. January 9, 2023. Available at: https://www.fns.usda.gov/usda-fis/usda-foods-available.
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USDA appreciates stakeholder suggestions for traditional Indigenous
foods, as well as other cultural foods, that should be added to the
Food Buying Guide. In 2023, USDA added new yield data for highly
requested foods such as chokecherries and taro to the Food Buying
Guide. Additional traditional Indigenous foods that respondents
suggested, such as kelp, are described in the Food Buying Guide as
similar to other food items with comparable yield information; this
information can be used when crediting similar foods for a reimbursable
meal. Input provided through public comment will be beneficial as USDA
continues its long-term initiative to identify more traditional foods
to incorporate into the Food Buying Guide. USDA also appreciates the
importance of continuing to engage with Tribal leaders and community
members to fully realize the intent of this change. Tribal stakeholders
and leaders provided USDA with valuable input on this rulemaking
through listening sessions and through Tribal Consultation. USDA
greatly appreciates this input and recognizes the importance of
continuing to work together on other initiatives to improve the child
nutrition programs for American Indian and Alaska Native children.
Some respondents suggested that foods from other cultures be added
to the Food Buying Guide. Many cultural foods, such as arepas and
pupusas, are creditable in school meal programs if made with creditable
ingredients, such as corn masa, masa harina, nixtamalized corn flour,
and nixtamalized cornmeal. Respondents also suggested foods like curry
dishes, which are often prepared with vegetables and meats/meat
alternates that are already listed in the Food Buying Guide. USDA
appreciates respondent feedback and continues to encourage program
operators to develop diverse menus that meet the needs and preferences
of the students they serve.
USDA understands that this change is just one part of a larger
effort to support the service of traditional Indigenous foods in school
meals and remains committed to promoting traditional foodways through
its policies and guidance. USDA's website, Serving Traditional
Indigenous Foods in Child Nutrition Programs,\103\ hosts a collection
of resources to support program operators working to incorporate
traditional Indigenous foods in reimbursables meals, including fact
sheets, recipes, crediting tip sheets, and other resources. This web
page provides guidance on sourcing locally grown and raised traditional
foods. USDA will continue to update this web page with additional tools
and resources as they are developed.
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\103\ U.S. Department of Agriculture, Serving Traditional
Indigenous Foods in Child Nutrition Programs. Available at: https://www.fns.usda.gov/cn/serving-traditional-indigenous-foods.
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Accordingly, this final rule amends 7 CFR 210.10(c)(7) and
220.8(c)(4) to explicitly state in regulation that traditional
Indigenous foods, in accordance with current meal pattern requirements,
may be served in reimbursable school meals. Schools are not required to
change menus or operations as a result of this technical change.
Section 9: Afterschool Snacks
Current Requirement
Afterschool snacks may be offered to children through the NSLP
(``NSLP snacks'') or through the CACFP (``CACFP snacks''). According to
the National School Lunch Act (NSLA, 42 U.S.C. 1766a(d)), the nutrition
requirements for CACFP snacks \104\ also apply to NSLP snacks. However,
current regulations at 7 CFR 210.10(o)(2) that outline the nutrition
requirements for NSLP snacks served to K-12 children are outdated and
do not reflect current statutory requirements. This preamble will refer
to afterschool snacks served by schools under 7 CFR part 210 as ``NSLP
snacks.''
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\104\ The nutrition requirements for snacks served through the
CACFP are found at 7 CFR 226.20(c)(3).
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Proposed Rule
USDA proposed to align the nutrition requirements for NSLP snacks
served to K-12 children (ages 6 through 18) at 7 CFR 210.10(o) with the
CACFP snack requirements, consistent with statute. Under the proposed
rule, the existing nutrition requirements for NSLP snacks served to
preschoolers and infants, which already follow CACFP requirements,
would remain in effect. The proposed rule also included a terminology
change, to remove all references to ``meal supplements'' in 7 CFR part
210 and replace them with the term ``afterschool snacks.''
Additionally, in the 2020 proposed rule, Simplifying Meal Service
and
[[Page 32008]]
Monitoring Requirements in the National School Lunch and School
Breakfast Programs,\105\ USDA proposed to revise the definition of
Child in 7 CFR 210.2, to clarify that children through the age of 18
may receive NSLP snacks. The proposal to update the definition of Child
also sought to align program regulations with statutory requirements
(NSLA, 42 U.S.C. 1766a(b)).
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\105\ Simplifying Meal Service and Monitoring Requirements in
the National School Lunch and School Breakfast Programs (85 FR 4094,
January 23, 2020). Available at: https://www.federalregister.gov/documents/2020/01/23/2020-00926/simplifying-meal-service-and-monitoring-requirements-in-the-national-school-lunch-and-school.
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Public Comments
USDA received 117 comments on the NSLP snacks proposal in the 2023
rule, including 111 unique comments. Of these, 58 supported the
proposal, 3 were opposed, and 56 were mixed. State agencies, advocacy
groups, dietitians, and individuals submitted comments in response to
this proposal. In addition, USDA received five comments in response to
the 2020 proposal to revise the definition of Child; all five
respondents supported the proposed change.
Regarding the NSLP snacks provision in the 2023 proposed rule, one
dietitian suggested the proposal would streamline program requirements,
describing it as a positive change. Another proponent agreed, noting
the change would align two similar programs without creating
administrative burden. A third respondent affirmed the benefits of
aligning program requirements, stating that the proposed change would
be beneficial for multi-program sponsors, and a school district that
currently participates in multiple child nutrition programs agreed. An
advocacy group supported the proposal and described the CACFP meal
pattern as ``nutritious.'' Another advocacy group supported changing
the term ``meal supplements'' to ``afterschool snacks,'' arguing that
``afterschool snacks'' is easier to understand. One proponent supported
applying the product-based added sugars limits for yogurt and breakfast
cereals to NSLP snacks; these limits are discussed further in Section
2: Added Sugars. While not directly related to the proposal, an
advocacy group emphasized the importance of afterschool programs in
general, noting that children need nutritional support during the hours
after school.
One respondent questioned why it is necessary to align the NSLP
snacks meal patterns with CACFP. An advocacy group opposed eliminating
grain-based desserts from NSLP snacks, which they argued would greatly
decrease options for schools. A few respondents raised concerns about
specific items that are identified as grain-based desserts and are
commonly served as afterschool snacks, such as granola and cereal bars.
Several other respondents agreed, noting that schools could experience
``menu fatigue'' due to limited options if grain-based desserts are no
longer permitted as NSLP snacks. A State agency cautioned that the
proposal to serve at least one whole grain-rich grain each day may be
challenging for NSLP snacks operators, given that there is already a
whole grain-rich requirement for school meals. Similarly, another State
agency questioned how the proposed NSLP snacks whole grain-rich
requirement would interact with the existing whole grain-rich
requirements for school lunch and breakfast. This State agency
maintained that while they usually support efforts to align
regulations, some of the differences between the school meal programs
and CACFP--such as the whole grain-rich requirements--could lead to
confusion. An industry respondent also encouraged USDA to reconsider
the proposed NSLP snacks whole grain-rich requirement, citing concerns
about requirements that are ``complicated'' and ``hard to follow.''
Other respondents requested clarification or offered suggestions.
An advocacy group recommended that USDA reconsider the serving size
requirements for fruits and vegetables in afterschool programs,
especially for younger children. This respondent suggested that the
current serving size for fruits and vegetables (\3/4\ cup) is too large
for elementary schoolchildren. Another advocacy group encouraged USDA
to provide ``an adequate timeline'' for implementation, while an
industry respondent supported training and technical assistance for
schools.
Final Rule
This final rule updates NSLP snacks meal pattern requirements for
K-12 children to reflect CACFP snack requirements, consistent with the
intent of the National School Lunch Act (NSLA, 42 U.S.C. 1766a(d)).
This change must be implemented by July 1, 2025. Program operators have
the option, but are not required, to implement this change early.
Additionally, this rule finalizes the provision from the 2020 proposed
rule to revise the definition of Child. This change clarifies that
children who are age 18 and under at the start of the school year may
receive reimbursable NSLP snacks, consistent with statute (NSLA, 42
U.S.C. 1766a(b)). As with the proposed rule, this final rule changes
all regulatory references in 7 CFR part 210 from ``meal supplements''
to ``afterschool snacks.'' This rule does not change requirements for
NSLP snacks served to preschoolers and infants; existing requirements
for NSLP snacks served to preschoolers and infants remain in effect.
In a public comment, one respondent asked why it is necessary for
NSLP snacks meal pattern requirements to follow CACFP requirements. As
noted in the proposed rule and above, this change is required by
statute. According to the National School Lunch Act (NSLA, 42 U.S.C.
1766a(d)), the nutritional requirements for snacks served through the
CACFP also apply to afterschool snacks served by schools. Consistent
with statutory requirements, this final rule updates regulations at 7
CFR 210.10(o)(2) outlining the nutrition requirements for afterschool
snacks served to K-12 children.
Under the final rule, by July 1, 2025, NSLP snacks served to K-12
children must include two of the following five components:
Milk
Meats/meat alternates
Vegetables
Fruits
Grains
The following CACFP snack requirements for children 6 years and
older also apply to NSLP snacks served to K-12 children. These
requirements for NSLP snacks must be implemented by July 1, 2025:
Only one of the two components served at snack may be a
beverage.
Milk must be fat-free or low-fat and may be unflavored or
flavored.
Grain-based desserts do not count toward the grains
requirement.
Foods that are deep-fat fried on-site are not reimbursable
NSLP snacks.
As detailed in Section 2: Added Sugars, breakfast cereals
must contain no more than 6 grams of added sugars per dry ounce.\106\
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\106\ While existing CACFP regulations limit breakfast cereals
to no more than 6 grams of total sugars per dry ounce, in this final
rule, USDA has opted to delay implementation of the breakfast
cereals limit in NSLP snacks to SY 2025-2026, when USDA will
implement the added sugars limit for NSLP, SBP, CACFP, and NSLP
snacks.
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As detailed in Section 2: Added Sugars, yogurt must
contain no more than 12 grams of added sugars per 6 ounces (2 grams of
added sugars per ounce).\107\
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\107\ While existing CACFP regulations limit yogurt to no more
than 23 grams of total sugars per 6 ounces, in this final rule, USDA
has opted to delay implementation of the yogurt limit in NSLP snacks
to SY 2025-2026, when USDA will implement the added sugars limit for
NSLP, SBP, CACFP, and NSLP snacks.
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[[Page 32009]]
In the proposed rule, USDA proposed to apply the per day juice
limit and the per day whole grain-rich requirement used in the CACFP to
NSLP snacks served to K-12 children. USDA is not finalizing the
proposed per day juice limit or the proposed per day whole grain-rich
requirement for NSLP snacks served to K-12 children. Instead, this
final rule applies the weekly juice limit and the weekly whole grain-
rich requirement used in the school meal programs to NSLP snacks. This
change, which results in NSLP snacks that are nutritionally similar to
snacks offered through the CACFP, is due to operational differences in
the requirements for lunches and breakfasts served to K-12 children
compared to preschool children. For K-12 children, the NSLP and SBP
require that no more than half of the weekly fruit or vegetable
offerings may be in the form of juice. As discussed in Section 4: Whole
Grains, the whole grain-rich requirements for NSLP and SBP meals served
to K-12 students also apply on a weekly, rather than daily, basis. As
pointed out in public comments, implementing an additional per day
requirement, when existing juice limitations and whole grain-rich
requirements for NSLP and SBP already apply per week, would be
confusing for schools that offer students school meals and NSLP snacks.
Therefore, this final rule instead applies the following weekly
requirements to NSLP snacks:
No more than half of the weekly fruit or vegetable
offerings at NSLP snacks may be in the form of juice.
At least 80 percent of the grains offered weekly in NSLP
snacks must be whole grain-rich, based on ounce equivalents of grains
offered.
USDA has determined that this approach will result in NSLP snacks
that are nutritionally comparable to snacks offered through the CACFP,
consistent with the intent of the statute, while avoiding operational
complexity. For example, under this final rule, NSLP snacks may include
juice, but will be required to offer fruits and vegetables in other
forms. Regarding fruit juice, the final rule Child and Adult Care Food
Program: Meal Pattern Revisions Related to the Healthy, Hunger-Free
Kids Act of 2010 noted that, ``The Dietary Guidelines recommends that
at least half of fruits should come from whole fruits and found that
children age 1 to 3 years consume the highest proportion of juice to
whole fruits.'' \108\ The NSLP snacks juice limit finalized in this
rulemaking incorporates Dietary Guidelines \109\ recommendations for K-
12 students and considers operational factors specific to NSLP snacks,
as suggested by public comments. Specifically, this final rule
considers that NSLP snacks operates alongside the school lunch and
breakfast programs, which have weekly juice limits. Additionally,
similar to CACFP requirements, this final rule includes a whole grain-
rich requirement for NSLP snacks, while permitting enriched grains,
provided that the whole grain-rich threshold is met. The intent of the
CACFP whole grain-rich requirement is to ensure that participants
receive at least one serving of whole grain-rich grains per day, across
all eating occasions. When considering grain offerings at school lunch
and breakfast, USDA expects that on most school days, K-12 children
receiving school meals and NSLP snacks would meet or exceed one whole
grain-rich grain per day. Consistent with statutory intent, the weekly
whole grain-rich requirement finalized in this rule improves the
nutritional quality of NSLP snacks and will result in snacks that are
nutritionally comparable to those offered in the CACFP. It also
responds to public comments that raised concerns with the operational
feasibility of implementing a per day whole grain-rich requirement in
NSLP snacks.
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\108\ U.S. Department of Agriculture, Child and Adult Care Food
Program: Meal Pattern Revisions Related to the Healthy, Hunger-Free
Kids Act of 2010, April 25, 2016. Available at: https://www.federalregister.gov/documents/2016/04/25/2016-09412/child-and-adult-care-food-program-meal-pattern-revisions-related-to-the-healthy-hunger-free-kids-act.
\109\ ``Although 100% fruit juice without added sugars can be
part of a healthy dietary pattern, it is lower in dietary fiber than
whole fruit. Dietary fiber is a dietary component of public health
concern. With the recognition that fruit should mostly be consumed
in whole forms, the amount of fruit juice in the USDA Food Patterns
ranges from 4 fluid ounces at the lower calorie levels and no more
than 10 fluid ounces at the highest calorie levels.'' See page 87:
U.S. Department of Agriculture and U.S. Department of Health and
Human Services. 2020-2025 Dietary Guidelines for Americans. 9th
Edition. December 2020. Available at: https://www.dietaryguidelines.gov/.
---------------------------------------------------------------------------
The changes for NSLP snacks served to K-12 children are reflected
in the NSLP snacks meal pattern chart for K-12 children (ages 6 through
18) now included at 7 CFR 210.10(o)(2) of this final rule. Unlike the
NSLP and SBP, which include three separate age/grade groups (K-5, 6-8,
and 9-12), schools offering NSLP snacks to K-12 children will follow a
single NSLP snacks meal pattern for all children ages 6 through 18.
Schools are encouraged to serve larger portions to older children to
meet their increased nutritional needs.
USDA appreciates public input regarding the serving sizes for
fruits and vegetables in afterschool snacks. This final rule does not
change the serving sizes for fruits and vegetables in the snack meal
patterns. In CACFP snacks, for children ages 6 and older, the serving
size for fruits and vegetables served as part of a snack will continue
to be \3/4\ cup. In NSLP snacks, for children in grades K-12, the
serving size for fruits and vegetables served as part of a snack will
also continue to be \3/4\ cup. Schools are not required to serve fruits
or vegetables as part of a reimbursable snack; these components are
just two of five options available to schools. Schools offering NSLP
snacks may choose to serve any combination of at least two of the five
components (milk, meats/meat alternates, vegetables, fruits, and/or
grains).
In response to requests for clarification about the changes in this
final rule, the following chart summarizes the prior regulatory
requirements for NSLP snacks served to K-12 children compared to the
requirements implemented by this final rule:
[[Page 32010]]
[GRAPHIC] [TIFF OMITTED] TR25AP24.083
There are a few differences to point out for NSLP snacks served to
preschoolers: \111\
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\110\ While existing CACFP regulations include total sugars
limits for breakfast cereals and yogurt, in this final rule, USDA
has opted to delay implementation of these limits for NSLP snacks to
SY 2025-2026, when USDA will implement the added sugars limit for
NSLP, SBP, CACFP, and NSLP snacks.
\111\ Consistent with existing policy guidance, schools may
choose to follow the K-5 NSLP snack meal pattern when preschoolers
and K-5 students are co-mingled at meal service. See Flexibility for
Co-Mingled Preschool Meals: Questions and Answers, June 30, 2017.
Available at: https://www.fns.usda.gov/cn/flexibility-co-mingled-preschool-meals-questions-and-answers.
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Milk fat requirements and flavoring limitations: milk must
be unflavored whole milk for children age one and must be unflavored
low-fat or unflavored fat-free milk for children ages two through five.
Juice limitations: full-strength juice may only be offered
to meet the vegetable or fruit requirement at one preschool meal or
snack per day. For example, a school serves breakfast, lunch, and NSLP
snack to preschoolers using the preschool meal patterns for all meals
and snacks. If the school opts to serve juice to preschoolers at
breakfast, juice may not be served to the preschoolers during the lunch
or NSLP snack service on the same day.
Whole grain-rich requirement: at least one serving of
grains per day must be whole grain-rich. For example, a school serves a
whole grain-rich item to preschoolers at lunch and chooses to serve a
grain at NSLP snack. In this example, the grain served for NSLP snack
would not be required to be whole grain-rich. However, schools that
provide NSLP snacks to preschoolers may choose to serve additional
whole grain-rich items, beyond the one serving per day requirement.
Accordingly, this final rule amends 7 CFR 210.2 to revise the
definition of Child for consistency with statute. This final rule also
amends 7 CFR 210.10(o) to align NSLP snacks meal pattern requirements
for K-12 children with CACFP snack requirements, consistent with the
intent of the statute. The updates to NSLP snack meal pattern
requirements must be implemented by July 1, 2025.
[[Page 32011]]
Section 10: Substituting Vegetables for Fruits at Breakfast
Current Requirement
Current regulations at 7 CFR 220.8(c) and (c)(2)(ii) allow schools
to substitute vegetables for fruits at breakfast, provided that the
first two cups per week are from specific vegetable subgroups: dark
green, red/orange, beans and peas (legumes), or ``other'' vegetable
subgroups.\112\ However, in recent years, through Federal
appropriations, Congress has provided schools the option to substitute
any vegetable--including starchy vegetables--for fruits at breakfast,
with no vegetable subgroup requirements. This Congressional flexibility
has been offered on a temporary basis and has left schools without
long-term certainty regarding menu planning options. For example, in
calendar year 2019, schools were initially granted the flexibility to
offer any vegetables in place of fruit at breakfast from February 15
through September 30. This flexibility was extended by Congress through
a subsequent appropriations bill but was not granted permanently.\113\
Most recently, Congress provided schools the same flexibility in SY
2022-2023 and SY 2023-2024, allowing any vegetable to credit in place
of fruits in weekly breakfast menus.\114\
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\112\ See: ``Vegetables'' page 31. U.S. Department of
Agriculture and U.S. Department of Health and Human Services. 2020-
2025 Dietary Guidelines for Americans. 9th Edition. December 2020.
Available at: https://www.dietaryguidelines.gov/.
\113\ See: U.S. Department of Agriculture, School Breakfast
Program: Substitution of Vegetables for Fruit, March 18, 2019.
Available at: https://www.fns.usda.gov/sbp/substitution-vegetables-fruit See also: U.S. Department of Agriculture, School Breakfast
Program: Continuation of the Substitution of Vegetables for Fruit
Flexibility, January 22, 2020. Available at: https://www.fns.usda.gov/sbp/school-breakfast-program-continuation-substitution-vegetables-fruit-flexibility.
\114\ See: U.S. Department of Agriculture, Consolidated
Appropriations Act, 2023: Effect on Child Nutrition Programs, March
3, 2023. Available at: https://www.fns.usda.gov/cn/consolidated-appropriations-act-2023-effect-programs.
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Proposed Rule
In the proposed rule, USDA acknowledged that it is confusing for
State agencies and schools to have a requirement in regulation that is
changed periodically through Federal appropriations. To permanently
address this issue, USDA sought to establish a durable standard that
continues to encourage vegetable variety at breakfast. USDA proposed to
continue to allow schools to substitute vegetables for fruits at
breakfast but to change the vegetable variety requirement. Under the
proposal, schools choosing to offer vegetables in place of fruits at
breakfast one day per school week would have the option to offer any
vegetables, including a starchy vegetable. Schools that choose to
substitute vegetables for fruits at breakfast on two or more days per
school week would be required to offer at least two different vegetable
subgroups during that weekly menu cycle. In other words, the
requirement to offer a second, different vegetable subgroup would only
apply in cases where schools choose to substitute vegetables for fruits
at breakfast more than one day per school week.
In the proposed rule, USDA proposed to change the name of the
``legumes (beans and peas)'' vegetable subgroup to ``beans, peas, and
lentils'' for consistency with the Dietary Guidelines. As discussed in
Section 20: Miscellaneous Changes of this final rule, USDA is
finalizing this proposed terminology change. Therefore, in the final
rule portion of this section, USDA will refer to the ``beans, peas, and
lentils'' vegetable subgroup.
Public Comments
USDA received hundreds of comments on the proposal to change the
vegetable variety requirement when substituting vegetables for fruits
at breakfast. Of these, 722 supported the proposal, including 51 unique
comments. Seventeen respondents opposed the proposal, and 89
respondents provided mixed feedback, including 58 unique comments.
Comments were submitted by State agencies, advocacy groups, industry
respondents, school districts, and dietitians.
Several respondents, including school nutrition professionals and
State agencies, supported this change, suggesting that it would allow
greater menu flexibility at breakfast compared to the current
regulatory requirement. One proponent noted that offering two different
vegetable subgroups at breakfast during a weekly menu cycle is
achievable and provided examples of how the proposal could be
implemented during a school week. A couple of school nutrition
professional organizations stated that this change would simplify
regulations for menu planners and eliminate confusion. A State agency
agreed and mentioned that this change would help school nutrition staff
better understand when more than one vegetable subgroup is required at
breakfast. An advocacy group supported the proposal and emphasized the
importance of maintaining variety in vegetable subgroups offered at
breakfast, particularly the inclusion of non-starchy vegetables. A
professional organization supported the proposal, arguing that
requiring a variety of vegetable subgroups at breakfast will prevent
schools from offering the same vegetable every day. An advocacy group
supported the proposal, describing it as a ``durable standard that
encourages vegetable variety.''
Some respondents opposed the proposal, asserting that it would
allow too much flexibility compared to the current regulatory
requirement. One advocacy group did not agree with the proposal,
suggesting it would allow schools to serve vegetables from a single
subgroup up to four days per school week. For example, this respondent
shared that if a school chose to substitute vegetables for fruits every
day, the ``school could offer an omelet with spinach on Monday, but
then serve hash browns, tater tots, or home fries the other four days
of the week.'' While it is accurate that under the proposal, a school
substituting vegetables for fruits at breakfast more than once per
school week would only need to offer two vegetable subgroups, schools
would still be required to meet the dietary specifications for
calories, saturated fat, and sodium at breakfast.
Conversely, other respondents felt that the proposal was too
restrictive and argued that schools should be able to offer any
vegetable in place of fruit at breakfast, without any vegetable
subgroup requirements. Some respondents suggested that fruits would
continue to be a popular offering at breakfast, and when opting to
substitute vegetables, schools should have maximum flexibility in
planning their menus. One school nutrition professional organization
asserted that having to monitor vegetable subgroups adds complexity to
the program. This respondent maintained that when offering vegetables,
schools should have the option to offer any vegetable without meeting a
variety requirement. Other food service directors agreed, suggesting
that USDA allow any vegetable to substitute for fruit at breakfast. A
dietitian cautioned that requiring schools to offer a variety of
vegetable subgroups throughout the week ``may disincentivize schools
from the offering of vegetables at breakfast.'' One industry respondent
expressed that all vegetables should be permitted to substitute for
fruits at breakfast without limitations or restrictions, further
stating that this flexibility would ``address the issue long-term,
prevent confusion, and increase overall vegetable intake within the
program.'' An individual stated that continuing to require vegetable
variety would result in schools offering vegetables that children do
not like at breakfast, increasing plate waste.
[[Page 32012]]
However, this respondent also maintained that the most popular
vegetables at breakfast are potatoes and sweet potatoes, which USDA
notes are from two different subgroups: starchy and red/orange.
Therefore, a school that chooses to substitute vegetables for fruits
could meet the proposed variety requirement for the school week by
offering these two popular vegetable options.
Other respondents recommended alternative approaches or requested
clarification. For example, a professional organization supported the
proposal to require a variety of vegetables at breakfast, when schools
choose to substitute vegetables for fruits, but suggested that USDA
limit starchy vegetables to avoid increasing sodium. A few advocacy
groups recommended that, in addition to the proposed variety
requirement, USDA should also require that a single vegetable subgroup
cannot make up more than half of the vegetable offerings at breakfast
per week. These respondents asserted that this alternative standard
would be less restrictive than the current regulatory standard,
continue to encourage a variety of vegetable subgroups, and ensure that
no single vegetable dominates SBP menus. An industry respondent opposed
allowing any vegetables to substitute for fruits at breakfast, arguing
that ``fruits contribute different nutrients than vegetables.'' Another
respondent requested clarification about the requirements for vegetable
offerings after a school meets the variety requirement. This respondent
shared that their school usually offers vegetables as an ``extra item''
at breakfast and requested that this continue to be an option.
A few respondents provided other comments on the potential impact
of the proposal. For example, an advocacy group suggested that
substituting vegetables for fruits could help to reduce the overall
sugar content of school breakfasts. A State agency noted that school
menu planners and State agency staff would need guidance, training, and
monitoring resources if this proposal is finalized. Similarly, an
individual suggested that USDA provide sample menus with ideas to
incorporate a variety of vegetables into the breakfast program. One
respondent raised concerns that the proposed change would add paperwork
for school nutrition staff. Conversely, one State agency maintained
that they do not expect the change to be administratively burdensome.
Final Rule
This final rule continues to allow schools to substitute vegetables
for fruits in the SBP and codifies the proposal to simplify the
vegetable variety requirement. Under this final rule, schools choosing
to offer vegetables at breakfast one day per school week have the
option to offer any vegetable, including a starchy vegetable. Schools
that choose to substitute vegetables for fruits at breakfast on two or
more days per school week are required to offer vegetables from at
least two different subgroups. The vegetable subgroups that schools may
choose from include the following, a defined at 7 CFR
210.10(c)(2)(iii):
Dark green
Red/orange
Beans, peas, and lentils
Starchy
``Other'' vegetables
USDA acknowledges that some stakeholders preferred a different
approach. A few respondents requested that USDA limit how often any one
vegetable subgroup could be offered at breakfast, with some advocating
for a specific limit on starchy vegetables. Other respondents
encouraged USDA to remove the vegetable variety requirement altogether.
However, USDA has determined that it is important to continue to
encourage vegetable variety when schools choose to offer vegetables at
breakfast. As noted in the proposed rule, while the Dietary Guidelines
recommend increasing consumption of vegetables in general, they note
that starchy vegetables are more frequently consumed by children and
adolescents than the red/orange, dark green, or beans, peas, and
lentils vegetable subgroups, underscoring the need for variety. The
proposed requirement, finalized in this rulemaking, provides a
straightforward and durable approach to support children consuming a
variety of vegetables.
USDA appreciates respondent requests for clarification about
implementation of this provision, such as one respondent who requested
that USDA explain what vegetable subgroup requirements would apply
after a school offers two different subgroups at breakfast. Under this
final rule, after a school offers vegetables from two different
subgroups, the school can choose to offer any vegetables at breakfast--
including vegetables from a subgroup the school has already offered
that school week. For example, a school can substitute a starchy
vegetable for fruit at breakfast on Monday, then substitute a dark
green vegetable for fruit at breakfast on Tuesday. The rest of the week
the school may choose to substitute any vegetables, including a dark
green or a starchy vegetable, for fruit at breakfast, since it would
have met the variety requirement by Tuesday. As requested by comments,
USDA will provide guidance and resources to support successful
implementation of this provision and to assist schools in their efforts
to offer a variety of vegetables as part of nutritious school
breakfasts.
This final rule continues to require schools opting to serve
vegetables at breakfast to offer a variety of subgroups, and in a way
that is less restrictive compared to the previous regulatory standard.
Consistent with current regulations, schools are not required to offer
vegetables at breakfast and may choose to offer only fruits at
breakfast to meet this component requirement. Schools may also continue
to offer vegetables at breakfast as an extra item, subject to the
weekly dietary specifications for calories, saturated fat, sodium, and
upon implementation, added sugars. As suggested by comments, USDA
expects that fruit will continue to be a popular offering in
reimbursable school breakfasts. While USDA acknowledges feedback
received about potential administrative burden, this final requirement
does not add any additional administrative requirements beyond menu
documentation and production records required for Administrative
Reviews, for schools that choose to substitute vegetables for fruits at
breakfast.
Accordingly, this final rule amends 7 CFR 220.8(c)(2)(i) and (ii)
to change the vegetable variety requirement for substituting vegetables
for fruits at breakfast. This change provides schools with more menu
planning flexibility at breakfast when compared to the current
regulation. Schools that are following the current regulatory
requirement are not required to change menus or operations as a result
of this provision. Schools that are using the Congressional flexibility
\115\ will need to offer at least two vegetable subgroups at breakfast,
if offering vegetables in place of fruit at breakfast more than once
per week.
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\115\ See: U.S. Department of Agriculture, Consolidated
Appropriations Act, 2023: Effect on Child Nutrition Programs, March
3, 2023. Available at: https://www.fns.usda.gov/cn/consolidated-appropriations-act-2023-effect-programs.
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Section 11: Nuts and Seeds
Current Requirement
Current regulations allow nuts and seeds, and nut and seed butters,
as a meat alternate in the child nutrition programs. In all child
nutrition
[[Page 32013]]
programs, nut and seed butters may credit for the full meats/meat
alternates component. However, current regulations limit the crediting
of whole nuts and seeds (or nut and seed pieces) in some child
nutrition programs. Current lunch and supper regulations limit nut and
seed crediting to 50 percent of the meats/meat alternates component (7
CFR 210.10(c)(2)(i)(B), 225.16(d)(2) and (e)(5), 226.20(a)(5)(ii) and
(c)(2)). SBP regulations include the same limit (7 CFR
220.8(c)(2)(i)(B)). CACFP regulations for breakfast do not explicitly
include the 50 percent limit for nuts and seeds, but refer to USDA
guidance, which includes the 50 percent limit (7 CFR 226.20(a)(5)(ii)).
Snack regulations and USDA guidance on snacks do not include the 50
percent limit; nuts and seeds may credit for the full meats/meat
alternates component when offered as part of a snack (7 CFR
210.10(o)(2)(ii), 225.16(e)(5), and 226.20(c)(3). For programs where
nut and seed crediting is limited to 50 percent of the meats/meat
alternates component, program operators choosing to serve nuts and
seeds must serve them alongside another meat/meat alternate to fully
meet the component requirement.
Proposed Rule
USDA proposed to allow nuts and seeds to credit for the full meat/
meat alternate component in all child nutrition programs and meals.
This proposal would remove the 50 percent crediting limit for nuts and
seeds at breakfast, lunch, and supper.
Public Comments
USDA received 389 comments on the proposed change to allow nuts and
seeds to credit for the full meats/meat alternates component, including
217 unique comments. Of these, 310 supported the proposal, including
158 unique comments, 10 were opposed, and 69 were mixed, including 49
unique comments. State agencies, advocacy groups, industry respondents,
school districts, dietitians, and individuals provided input on this
proposal.
Several respondents supported the proposal, including a national
organization representing tens of thousands of school nutrition
professionals. One proponent applauded the proposal, noting that nuts
and seeds are good sources of protein, vitamin E, fiber, and many
minerals. A dietitian agreed, maintaining that nuts and seeds are
healthy proteins that would provide variety throughout the week. An
advocacy group added that nuts and seeds provide healthy fats. Another
advocacy group representing the CACFP community indicated that 85
percent of its members supported the proposal. Several respondents,
including dietitians, school districts, and a State agency, suggested
that this change would allow more vegan and vegetarian options in child
nutrition program meals. An advocacy group described plant-based
entr[eacute]es that operators could serve under this change, such as
walnut and mushroom-based ``taco meat,'' rice pilaf with pistachios,
and salad with sunflower seeds. In addition to plant-based options, an
advocacy organization and a State agency noted that this proposal would
allow more shelf-stable foods to be served in afterschool and summer
meals. Another State agency suggested that this proposed change would
allow program operators to offer healthier versions of popular bistro
or snack boxes. An individual stated that the proposal would allow
operators greater latitude to develop menus that reflect participant
preferences; other respondents agreed, citing increased demand for
vegetarian meals.
One opponent argued that nuts and seeds are not adequate to meet
the full meats/meat alternates component requirement. A few industry
respondents also opposed the proposal, arguing that in their view,
animal products are more nutritious than vegetarian foods. However,
this respondent also supported greater menu planning flexibility and
opposed ``mandatory federal limits'' in the meal patterns. Another
respondent raised concern about oils in nuts and seeds and the
potential for nuts and seeds to cause ``digestive distress'' among some
participants. One respondent suggested students at their school would
not be interested in meals that include nuts and seeds as the full
meats/meat alternates component.
Other respondents requested clarification or offered alternatives
to the proposal. One respondent asked if nuts would be mandatory,
citing food allergy concerns. Another respondent supported the change,
but recommended capping the number of times per week operators could
offer nuts and seeds to promote variety. One advocacy group suggested
that USDA update its crediting guidance for nuts and seeds and nut and
seed butters, asserting that the current requirements are too high. For
example, this respondent argued that the current requirements result in
sandwiches filled with an inedible amount of nut butter, making them
difficult to chew and swallow. A State agency recommended targeting
this provision to older children, citing concerns about choking hazards
for young children. Similarly, an advocacy group raised concerns about
the safety and appropriateness of offering nuts and seeds to very young
children. This respondent also noted that nut and seed products may be
glazed or sugar coated. An industry respondent noted that offering nuts
may create menu planning complications due to the sodium content of
some nuts. However, this respondent still supported the proposal.
Another respondent requested sample menus and recipe ideas to support
implementation of this change.
Final Rule
This final rule codifies the proposal to allow nuts and seeds to
credit for the full meats/meat alternates component in all child
nutrition programs and meals, removing the 50 percent crediting limit
for nuts and seeds at breakfast, lunch, and supper. USDA expects this
change to reduce complexity by making the requirements consistent
across programs and to provide more menu planning options for program
operators.
Child nutrition operators are not required to make any changes to
their menus to comply with this standard. Nuts and seeds are not
required in child nutrition program meals, but rather, continue to be
an option for operators. When offering nuts and seeds, child nutrition
operators may offer them to meet the full meats/meat alternates
component but are not required to; operators may choose to offer nuts
and seeds toward only a portion of the component, alongside another
meat/meat alternate. Although USDA recognizes that many child nutrition
program operators will continue to offer nuts and seeds in snacks, or
in small amounts in meals alongside other meats/meat alternates, this
final rule gives operators increased flexibility to offer nuts and
seeds for the full meats/meat alternates component in all meals and
snacks.
USDA appreciates comments regarding the importance of variety in
meals and snacks and expects that operators will continue to offer a
variety of foods toward the meats/meat alternates meal component.
Additionally, according to the Dietary Guidelines, more than half of
Americans do not meet the recommendations for the nuts, seeds, and soy
products subgroup.\116\ Therefore, USDA has
[[Page 32014]]
determined that it is not necessary to limit the number of times nuts
and seeds may be served per week in order to promote variety within the
meats/meat alternates meal component. As suggested in public comments,
USDA expects that this change will expand options for vegetarian and
vegan meals that include nuts, seeds, and nut and seed butters. As
noted in the Dietary Guidelines, a healthy vegetarian dietary pattern
can be achieved by incorporating protein foods from plants, including
nuts and seeds; beans, peas, and lentils; tofu and other soy products;
and whole grains.\117\
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\116\ See ``Protein Foods,'' page 34. U.S. Department of
Agriculture and U.S. Department of Health and Human Services. 2020-
2025 Dietary Guidelines for Americans. 9th Edition. December 2020.
Available at https://www.dietaryguidelines.gov/.
\117\ See ``Protein Foods,'' page 33. U.S. Department of
Agriculture and U.S. Department of Health and Human Services. 2020-
2025 Dietary Guidelines for Americans. 9th Edition. December 2020.
Available at: https://www.dietaryguidelines.gov/.
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USDA appreciates input regarding the serving sizes for nuts, seeds,
and their butters. Many factors are considered when determining
crediting amounts for foods in the child nutrition programs, including
the FDA Standards of Identity, Dietary Guidelines, and the USDA Food
Safety and Inspection Service Food Standards and Labeling Policy.
USDA's Food Buying Guide for Child Nutrition Programs also assists in
determining the contribution that each food makes toward meal pattern
requirements. In this final rule and corresponding guidance, USDA will
maintain current crediting amounts for nuts and seeds and their
butters. In cases where an operator determines a portion is too large
for a child or adult participant, it is recommended that nuts and seeds
and their butters be served in combination with another meat/meat
alternate to meet the full component requirement.
USDA is mindful of respondent concerns about choking hazards and
has provided guidance on reducing the risk of choking in young
children.\118\ As noted in the proposed rule, nuts and seeds are
generally not recommended to be served to children ages 1 to 3 because
they present a choking hazard. If served to very young children, nuts
and seeds should be finely minced. Program operators should also be
aware of food allergies among participants and take the necessary steps
to prevent exposure. Section 14: Meal Modifications provides more
information about requirements to provide meal modifications for
participants with disabilities, which may include food allergies.
Finally, as noted in the proposed rule, USDA encourages program
operators to offer nuts, seeds, and their butters in their most
nutrient-dense form, without added sugars and salt, and schools must
consider the contribution of these foods to the weekly limits for
calories, saturated fat, and sodium.
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\118\ U.S. Department of Agriculture, Reducing the Risk of
Choking in Young Children at Mealtimes. September 2020. Available
at: https://www.fns.usda.gov/tn/reducing-risk-choking-young-children-mealtimes.
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Accordingly, this final rule amends 7 CFR 210.10(c)(2)(iv)(B),
220.8(c)(2)(iv)(B), 225.16(d)(2) and (e)(5), 226.20(a)(5)(ii) and
(c)(2) to allow nuts and seeds to credit for the full meats/meat
alternates component in all child nutrition program meals, removing the
50 percent crediting limit for nuts and seeds at breakfast, lunch, and
supper. This change provides child nutrition program operators more
menu planning flexibility. Program operators are not required to change
menus or operations as a result of this provision.
Section 12: Beans, Peas, and Lentils at Lunch
Current Requirement
Consistent with the Dietary Guidelines, the school lunch meal
pattern includes five vegetable subgroups: dark green, red/orange,
beans and peas (legumes), starchy, and ``other'' vegetables. Current
NSLP regulations at 7 CFR 210.10(c)(2)(iii) require school food
authorities to offer vegetables from all five subgroups each school
week. Specifically for the beans and peas (legumes) vegetable subgroup,
schools must offer \1/2\ cup over the course of the week at lunch to
meet the vegetable subgroup requirement.
In addition to crediting toward the vegetable meal component,
legumes may also credit toward the meats/meat alternates meal component
(7 CFR 210.10(c)(2)(i)(E)). Legumes may count toward either the
vegetable meal component or meats/meat alternates meal component, but
not both components in the same meal (7 CFR 210.10(c)(2)(iii)). This
limit applies when legumes are offered in a single dish. When a school
offers legumes in two separate dishes as part of the same meal, one
serving may count toward the vegetable meal component and one serving
may count toward the meats/meat alternates meal component, at menu
planners' discretion.\119\
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\119\ See Question 35. U.S. Department of Agriculture. Meal
Requirements Under the National School Lunch Program and School
Breakfast Program: Questions and Answers for Program Operators
Updated to Support the Transitional Standards for Milk, Whole
Grains, and Sodium Effective July 1, 2022, March 2, 2022. Available
at: https://www.fns.usda.gov/cn/sp052022-questions-answers-program-operators.
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Proposed Rule
In the 2020 proposed rule, USDA proposed to allow legumes offered
toward the meats/meat alternates meal component to also count toward
the weekly requirement to offer \1/2\ cup of the legumes vegetable
subgroup per week at lunch, while maintaining the total vegetables
requirement. As with the current requirement, under the proposal,
legumes would not count toward two meal components (vegetable component
and meats/meat alternates component) at the same time. If a school opts
to count legumes toward the meats/meat alternates meal component, the
school would need to serve another vegetable to count toward the daily
and weekly vegetable meal component requirements. However, under the
proposal, legumes could count toward the legumes vegetable subgroup
requirement when offered toward the meats/meat alternates meal
component.
Later, in the 2023 proposed rule, USDA proposed to change the name
of the beans and peas (legumes) vegetable subgroup in school meal and
CACFP regulations to align with the Dietary Guidelines, 2020-2025,
which changed the terminology for the vegetable subgroup to ``beans,
peas, and lentils.'' \120\ As discussed in Section 20: Miscellaneous
Changes, USDA is finalizing this proposed terminology change.
Therefore, when discussing the final standard in this section, USDA
will use the term ``beans, peas, and lentils'' in place of ``beans and
peas (legumes).''
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\120\ The Dietary Guidelines, 2020-2025, changed the terminology
for the ``legumes (beans and peas)'' vegetable subgroup to ``beans,
peas, and lentils.'' The foods within this vegetable subgroup did
not change. See ``About Beans, Peas, and Lentils,'' page 31. U.S.
Department of Agriculture and U.S. Department of Health and Human
Services. 2020-2025 Dietary Guidelines for Americans. 9th Edition.
December 2020. Available at: https://www.dietaryguidelines.gov/.
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Public Comments on 2020 Proposed Rule
USDA received 103 comments on the 2020 proposed rule about the
proposal to allow beans and peas (legumes) offered toward the meats/
meat alternates meal component to count toward the weekly legumes
subgroup requirement, all of which were unique comments. Of these, 61
supported the proposal, 28 were opposed, and 14 were mixed.
One proponent emphasized that the proposal would not reduce the
total amount of vegetables at lunch, but would instead help schools
offer legumes. A school district suggested that this change would allow
more
[[Page 32015]]
menu planning flexibility. Other proponents agreed, saying this
proposal would help schools offer legumes as part of an entr[eacute]e,
as opposed to a side dish. Some proponents, including an advocacy
group, maintained that legumes offered as entr[eacute]es are more
appealing to children and help reduce food waste. For example, one
dietitian advised that children may be more likely to consume a bean
and cheese burrito, and less likely to consume a scoop of beans from a
salad bar. Similarly, a school district noted that students at their
school prefer bean dishes such as pupusas, tacos, and chilis (which
they offer as meats/meat alternates) compared to side dishes like baked
beans and bean salads.
Some opponents seemed to misunderstand the proposal, assuming that
it would lessen the overall amount of vegetables offered in school
lunch. To be clear, schools would be required to offer a separate
vegetable to count toward the daily and weekly vegetable component
requirements when offering legumes as a meat/meat alternate. One State
agency opposed the proposal, arguing that it could decrease the total
amount of legumes offered in cases where schools are currently offering
legumes as a meat/meat alternate in an entr[eacute]e, along with
offering legumes in a side dish as a vegetable. A few State agencies
expressed concern that this proposal could lead to confusion among
schools, resulting in meal pattern errors. Several respondents,
including State agencies and an advocacy group, emphasized that
training and technical assistance would be critical to ensure this
provision is implemented correctly.
One proponent emphasized the benefits of legumes, which they
described as versatile, inexpensive, sustainable, and nutritious. Other
respondents, including industry respondents, agreed, suggesting legumes
are a good source of several important nutrients, including dietary
fiber and potassium. In general, many respondents expressed support for
increasing consumption of legumes, which are currently underconsumed by
children and adolescents (and all other age groups).\121\
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\121\ U.S. Department of Agriculture and U.S. Department of
Health and Human Services. Dietary Guidelines for Americans, 2020-
2025. 9th Edition. December 2020. Available at: https://www.dietaryguidelines.gov/.
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Final Rule
This final rule codifies the option for schools to count beans,
peas, and lentils offered as a meat alternate at lunch toward the
weekly beans, peas, and lentils vegetable subgroup requirement. Under
this option, as with the current requirement, schools would determine
which overall meal component the beans, peas, and lentils would count
toward: the vegetable meal component, or the meats/meat alternates meal
component. This new option will permit beans, peas, and lentils offered
as a meat alternate to count toward the weekly beans, peas, and lentils
vegetable subgroup requirement. However, beans, peas, and lentils
offered as a meat alternate would not also count toward the daily or
weekly overall vegetable meal component requirements; schools using
this option would be required to offer additional vegetables to meet
the daily and weekly vegetable meal component requirements.
For example, a school offers a wrap with chickpeas, fresh tomatoes,
and lettuce. In this example, the menu planner opts to count the
chickpeas toward the meats/meat alternates meal component. In addition
to counting toward the daily and weekly meats/meat alternates meal
component requirements, the menu planner could also count the chickpeas
toward meeting the weekly vegetable subgroup requirement to offer at
least \1/2\ cup of beans, peas, and lentils; the school would not need
to offer another vegetable from this subgroup during that week.
However, during this meal, because the chickpeas are already counting
toward the meats/meat alternates meal component, they cannot also count
toward the vegetable meal component. The menu planner would instead
count the other vegetables offered in the wrap (tomatoes and lettuce)
toward the daily and weekly total vegetable meal component requirements
and their respective vegetable subgroups.
In a different example, a school offers a black bean and cheese
quesadilla. In this example, the menu planner opts to count the cheese
toward the meats/meat alternates meal component, and to count the black
beans toward the vegetable meal component. In this case, the black
beans could count toward the weekly requirement to offer \1/2\ cup of
beans, peas, and lentils (vegetable subgroup requirement), as well as
the daily and weekly total vegetable meal component requirements, since
the school is offering the beans as a vegetable and not as a meat
alternate.
USDA is mindful of concerns, particularly from State agencies, that
this provision could be implemented incorrectly. Public comments from
State agencies expressed concern that when implementing this provision,
schools may incorrectly double-count beans, peas, and lentils toward
both the meats/meat alternates component and vegetable component in the
same meal, resulting in a missing meal component at lunch. USDA
recognizes the importance of providing thorough training and technical
assistance to support implementation of this provision. Additionally,
schools are not required to use this option and may instead continue
with their current menu planning approach for beans, peas, and lentils.
This new option is intended to support schools that wish to offer more
plant-based and vegetarian options toward the meats/meat alternates
meal component.
Accordingly, this final rule amends 7 CFR 210.10(c)(2)(ii)(C) and
(c)(2)(iv)(E) to allow beans, peas, and lentils offered toward the
meats/meat alternates meal component to also count toward the
requirement to offer \1/2\ cup of the beans, peas, and lentils
vegetable subgroup each week. Beans, peas, and lentils offered toward
the meats/meat alternates meal component would not count toward the
daily or weekly overall vegetable meal component requirements. This
change provides schools with more menu planning flexibility at lunch.
Schools are not required to change menus or operations as a result of
this provision.
Section 13: Competitive Foods: Bean Dip Exemption
Current Requirement
Current regulations at 7 CFR 210.11 establish requirements for all
foods sold in schools outside of the school meal programs. These
requirements, known as competitive food standards, or ``Smart Snacks in
School'' standards, help to promote healthy food choices throughout the
school day. To comply with these standards, hereafter referred to as
the Smart Snacks standards, foods must meet nutrition standards,
including the standards for total fat established at 7 CFR 210.11(f).
Proposed Rule
USDA proposed to add hummus to the list of foods exempt from the
total fat standard in the Smart Snacks regulations. Hummus would
continue to be subject to all other Smart Snacks standards, including
limits for saturated fat, total sugars (by weight of product),
calories, and sodium. This change would allow hummus, which is already
permitted as a contributing (creditable) part of a reimbursable school
meal, to be sold as a Smart Snack to students on campus throughout the
school day, provided all other Smart Snacks nutrition standards are
met.
[[Page 32016]]
Because there is currently no FDA standard of identity for hummus,
USDA proposed to add the following definition of ``hummus'' to the
Smart Snacks regulations: Hummus means, for the purpose of competitive
food standards implementation, a spread made from ground pulses (beans,
peas, and lentils), and ground nut/seed butter (such as tahini [ground
sesame], peanut butter, etc.) mixed with a vegetable oil (such as olive
oil, canola oil, soybean oil, etc.), seasoning (such as salt, citric
acid, etc.), vegetables and juice for flavor (such as olives, roasted
pepper, garlic, lemon juice, etc.). Manufactured hummus may also
contain certain ingredients necessary as preservatives and/or to
maintain freshness.
Public Comments
USDA received 200 comments on the proposal to exempt hummus from
the Smart Snacks total fat standard, including 174 unique comments. Of
these, 145 supported the proposal, including 119 unique comments, 1 was
opposed, and 54 were mixed. Comments were submitted by State agencies,
advocacy groups, industry respondents, school districts, and
individuals.
Respondents, including a national organization representing tens of
thousands of school nutrition professionals, overwhelmingly supported
the proposal. One proponent noted that hummus provides many nutrients,
including fiber, protein, iron, and magnesium. Another proponent
described hummus as a nutritious snack option and maintained that
hummus is filling and high in protein. An advocacy group noted that
hummus provides healthy fats and is often served alongside other
nutrient-dense foods, such as vegetables or whole grains, while other
respondents, including a State agency, maintained this proposal would
help children incorporate more legumes into their diets. Another State
agency asserted that this proposal would allow schools to add a healthy
[agrave] la carte option to their cafeterias. An advocacy group
suggested this proposal would expand [agrave] la carte options for
vegans and vegetarians.
A few proponents sought confirmation that the proposed exemption
was limited to the total fat standard and that other Smart Snacks
standards would continue to apply to hummus. For example, an advocacy
group supported the proposal, provided that hummus would continue to be
subject to the saturated fat standard for Smart Snacks. A State agency
requested clarification that the Smart Snacks sodium limits would
continue to apply to hummus. To clarify, under the proposed rule,
hummus would continue to be subject to all other Smart Snacks
standards, including limits for saturated fat, total sugars (by weight
of product), calories, and sodium.
A few respondents opposed the proposal or provided other comments.
One opponent cited concerns about processed foods, especially those
containing soybean or canola oil. An advocacy group did not oppose the
change, but suggested children would not eat hummus. One respondent
wondered if schools could serve carrots with hummus as a Smart Snacks
compliant combination food.
Although not directly related to the hummus proposal, other
respondents recommended that USDA exempt other foods from the Smart
Snacks total fat standard. For example, a few respondents encouraged
USDA to provide an exception for avocados or guacamole. Another
encouraged an exemption for salads with dressings, arguing that salad
dressing has a high percentage of calories from fat, even if the
overall calories in the salad are low. An industry respondent
recommended that USDA exempt other condiments from Smart Snacks
standards, suggesting that condiments promote the consumption of
nutrient-dense foods. One school district suggested that USDA exempt
nut butters from the total fat standard; to clarify, nuts and seeds and
nut/seed butters are already exempt from the total fat and saturated
fat Smart Snacks standards (7 CFR 210.11(f)(3)(ii)). This exemption
does not apply to combination foods that contain nuts and seeds or nut/
seed butters with other ingredients, such as peanut butter and
crackers, trail mix, or chocolate covered peanuts.
A few respondents provided feedback on the proposed definition of
hummus. A State agency described the proposed definition as
``reasonable.'' Another respondent pointed out that the word ``hummus''
has a culturally significant meaning and suggested USDA use a different
term, such as ``ground bean-based dip.'' An advocacy group noted that
some types of hummus do not include ground nut or seed butters. This
respondent noted schools may prefer to sell hummus without nut or seed
butter as an ingredient, given the potential for nut or seed allergies.
Because of this, the advocacy group recommended making nut or seed
butter an optional ingredient in the definition of hummus. A school
district requested that USDA clarify whether the definition applies
only to hummus made from chickpeas, or alternatively, if dips that
include other types of beans would qualify for the exemption.
Final Rule
In this final rule, USDA is revising the terminology for this
provision based on public comment. Instead of referring to ``hummus''
in regulation, this final rule will refer to ``bean dip.'' This change
reflects input received through a public comment, which noted that the
word ``hummus'' already has a culturally significant meaning and is
traditionally made from chickpeas (rather than any variety of beans,
peas, or lentils). The change also addresses a school district's
question about whether this exemption is limited to hummus made with
chickpeas, or if it can include products made from other types of
beans. Based on these comments, USDA has determined a more general term
is preferred. Therefore, this final rule adds bean dip to the list of
foods exempt from the total fat standard in the Smart Snacks
regulations. This exemption applies to products marketed as hummus, as
well as bean dips made from any variety of beans, peas, or lentils.
Bean dip would continue to be subject to the saturated fat standard for
Smart Snacks, as well as all other Smart Snacks requirements.
This final rule also codifies the following definition of ``bean
dip'' in the Smart Snacks regulations. Under this definition, bean dip
can be made from chickpeas as well as other varieties of beans, peas,
and lentils: Bean dip means, for the purpose of competitive food
standards, a spread made from ground pulses (beans, peas, and/or
lentils) along with one or more of the following optional ingredients:
Ground nut/seed butter (such as tahini [ground sesame] or
peanut butter;
Vegetable oil (such as olive oil, canola oil, soybean
oil);
Seasoning (such as salt, citric acid);
Vegetables and juice for flavor (such as olives, roasted
peppers, garlic, lemon juice); and
For manufactured bean dip, ingredients necessary as
preservatives and/or to maintain freshness.
USDA appreciates input that stakeholders provided on the proposed
definition. In this final rule, USDA has adjusted the definition to
clarify that bean dip does not need to include all of the ingredients
listed in the definition to qualify for this exemption. To qualify for
the exemption, a bean dip must include ground pulses (beans, peas, and/
or lentils), but the remaining ingredients listed in the definition are
not required. The final definition clarifies that these remaining
ingredients are optional. A bean dip may include any combination of one
or more of the remaining optional
[[Page 32017]]
ingredients listed in the definition. For example, hummus made with
chickpeas, water, tahini, sunflower oil, lemon juice, and spices (such
as garlic, salt, and crushed red pepper) could be sold a la carte as a
bean dip under this final rule provided that the product as packaged
meets the Smart Snacks standards for calories, sodium, saturated fat,
and total sugars by weight.
This change applies to bean dip as a standalone product; it does
not apply to combination foods that include bean dip. For example, the
exemption does not apply to hummus packaged with pretzels, pita, or
other snack-type foods. Applying this exemption only to bean dip as a
standalone product ensures that the other foods that are offered for
sale to children at school alongside the bean dip remain subject to the
Smart Snacks total fat standard, as well as all other Smart Snacks
standards. Under this change, schools have the option to sell bean dip
as a standalone product, or along with other standalone products that
also meet the Smart Snacks standards, such as carrots or celery. As
detailed at 7 CFR 210.11(d)(2), fresh vegetables, such as carrots and
celery, with no added ingredients are exempt from Smart Snacks
standards. Schools may also sell bean dip along with whole grain-rich
pita bread, whole grain-rich crackers, or other products, provided
those products meet the Smart Snacks standards.
As a reminder, when a product that is exempt from the Smart Snacks
standards is paired with another product that is exempt, both
exemptions are maintained when the products are paired and no other
ingredients are added. For example, the celery, peanut butter, and
raisins included in ``ants on a log'' sold a la carte would maintain
their respective exemptions when paired together with no other
ingredients. Additionally, combination foods with at least \1/4\ cup of
fruit and/or vegetable (for example, \1/4\ cup of grapes with enriched
pretzels) can be sold to students on campus throughout the day,
provided the combination food, as packaged, meets all Smart Snacks
standards for calories, sodium, total fat, saturated fat, and total
sugars (by weight of product).
USDA appreciates public input on other foods and products that
stakeholders would like to exempt from the Smart Snacks total fat
standard. However, this new exemption is limited to bean dips, as
defined at 7 CFR 210.11(a)(7). As noted, certain other products already
have an exemption to the total fat standard, or the total fat and
saturated fat standards, for Smart Snacks. These exemptions remain in
place under this rule and are listed at 7 CFR 210.11(f).
Accordingly, this final rule amends 7 CFR 210.11(a)(7) to codify
the definition of ``bean dip'' and 7 CFR 210.11(f)(2)(ii) to exempt
bean dip, including hummus, from the total fat standard in the Smart
Snacks regulations. This change provides schools the option to sell
bean dip as a Smart Snack. Schools are not required to change
operations as result of this provision.
Section 14: Meal Modifications
Current Requirement
Current regulations require schools, institutions, and facilities
to make meal modifications to ensure participants with disabilities
have an equal opportunity to participate in, and benefit from, the
NSLP, SBP, and CACFP (7 CFR 210.10(m)(1), 220.8(m), and 226.20(g)(1)).
The regulations allow, but do not require, schools, institutions, and
facilities to make substitutions for ``medical or other special dietary
needs'' that are not disabilities but that prevent a participant from
consuming the regular reimbursable meal or snack. Under current NSLP
and SBP regulations, substitutions for disability reasons must be
supported by a written statement signed by a licensed physician. Under
current CACFP regulations, the written statement must be signed by a
licensed physician or licensed healthcare professional who is
authorized by State law to write medical prescriptions. Under the
current NSLP, SBP, and CACFP regulations, substitutions for ``medical
or other special dietary needs'' must be supported by a written
statement signed by a recognized medical authority (7 CFR 210.10(m)(2),
220.8(m), and 226.20(g)(2)). An exception is fluid milk substitutes for
``medical or special dietary needs'' that are not disabilities. Fluid
milk substitutes for ``medical or special dietary needs'' must be
supported by a written request; however, the written request may come
from a parent or guardian or from a medical authority (7 CFR
210.10(m)(2)(ii)(B) and 226.20(g)(3)).\122\ Fluid milk substitutes are
discussed in greater detail in Section 3B: Fluid Milk Substitutes:
Responses to Request for Input and Section 3C: Fluid Milk Substitutes:
Nutrient Requirements.
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\122\ As noted in the proposed rule, based on statutory
requirements, USDA regulations include several other requirements
for fluid milk substitutions for non-disability reasons, such as
specific nutrition standards. See page 8061: Child Nutrition
Programs: Revisions to Meal Patterns Consistent With the 2020
Dietary Guidelines for Americans (88 FR 8050, February 7, 2023).
Available at: https://www.federalregister.gov/d/2023-02102/p-208.
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Current NSLP and SBP regulations also encourage schools to consider
``ethnic, religious, or economic'' factors when planning or preparing
meals, provided the variations meet the meal pattern requirements (7
CFR 210.10(m)(3) and 220.8(m)). CACFP regulations allow institutions
and facilities--with USDA approval--to vary meal components on an
experimental or continuing basis, if the variations are nutritionally
sound and necessary to meet ``ethnic, religious, economic, or
physical'' needs (7 CFR 226.20(h)).
In September 2016, USDA updated its school meal modification policy
guidance \123\ to reflect passage of The Americans with Disabilities
Act (ADA) Amendments Act of 2008. Later, in June 2017, USDA issued
updated CACFP and SFSP meal modification policy guidance.\124\ The ADA
Amendments Act clarified the meaning and interpretation of the ADA
definition of ``disability'' to ensure that it would be broadly
construed and applied without extensive analysis. Therefore, rather
than focusing on if a child or adult participant has a disability,
USDA's updated policy guidance stated that program operators should
focus on working collaboratively with parents, guardians, participating
adults, or a person acting on behalf of an adult participant to ensure
equal opportunity to benefit from the programs. Notably, USDA's updated
policy guidance \125\ allowed a State licensed healthcare professional,
such as a nurse practitioner or physician's assistant, to submit a
medical statement on behalf of a child or adult participant with a
disability. It also clarified that program operators may accommodate
requests related to a disability that are not supported by a medical
statement if the requested modification can be accomplished within the
program meal patterns and encouraged operators to use this option when
possible. At the
[[Page 32018]]
same time, the updated policy guidance explained that program operators
may choose to obtain a written medical statement for all disability
meal modifications, even those that fall within the meal patterns. This
updated guidance addressed modifications required to accommodate
disabilities that restrict a participant's diet; it did not address
dietary preferences or other non-disability requests, which program
operators are encouraged--but not required--to meet.
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\123\ U.S. Department of Agriculture, Modifications to
Accommodate Disabilities in the School Meal Programs, September 27,
2016. Available at: https://www.fns.usda.gov/cn/modifications-accommodate-disabilities-school-meal-programs.
\124\ U.S. Department of Agriculture, Policy Memorandum on
Modifications to Accommodate Disabilities in the Child and Adult
Care Food Program and Summer Food Service Program, June 22, 2017.
Available at: https://www.fns.usda.gov/cn/modifications-accommodate-disabilities-cacfp-and-sfsp.
\125\ See Question 16. U.S. Department of Agriculture,
Accommodating Disabilities in the School Meal Programs: Guidance and
Questions and Answers (Q&As). April 25, 2017. Available at: https://www.fns.usda.gov/cn/accommodating-disabilities-school-meal-programs-guidance-qas.
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Proposed Rule
In the 2020 rule, USDA proposed a variety of regulatory changes to
reflect the updated policy guidance and to improve access to modified
meals for participants who need them. The rule proposed to codify in
regulation that State licensed healthcare professionals may write
medical statements to request modifications on behalf of participants
with disabilities in the school meal programs and CACFP. It also
proposed to define a State licensed healthcare professional as an
individual authorized to write medical prescriptions under State law.
Regarding child and adult participant food preferences, the 2020 rule
proposed to revise existing regulatory text to encourage schools,
institutions, and facilities to meet participants' cultural, ethical,
Tribal, or religious preferences when preparing meals in the school
meal programs and CACFP.\126\ The rule also proposed reorganizing the
regulatory text to distinguish between disability and non-disability
requests more clearly. The 2020 rule did not propose changes to SFSP
regulations.
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\126\ For comparison, current regulations at 7 CFR 210.10(m)(3)
state that, ``Schools should consider ethnic and religious
preferences when planning and preparing meals . . . Any variations
must be consistent with the food and nutrition requirements
specified under this section and needed to meet ethnic, religious,
or economic needs.''
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Public Comments on 2020 Proposed Rule
USDA received 120 comments on the meal modifications provision of
the 2020 proposed rule, including 83 unique comments. Of these, 69
supported the proposed changes, including 32 unique comments, 6 were
opposed, and 45 were mixed.
Many respondents supported USDA's proposal to codify the existing
policy guidance in regulation and appreciated the clarification that a
medical statement is only required for modifications that fall outside
the meal patterns. Respondents also emphasized the importance of
ensuring participants who need meal modifications can easily access
them and encouraged USDA to take steps to minimize burden for families
in the modification request process.
Respondents provided input on the requirement for program operators
to obtain a medical statement when the meal modification does not meet
the meal pattern requirements. One State agency maintained that the
meal patterns provide enough flexibility to meet a variety of needs and
preferences. In cases where a child or adult participant requires a
modification outside the scope of the meal patterns, this State agency
agreed it should be supported by formal documentation. A few other
State agencies asserted that requiring a medical statement protects
children's health and is not too burdensome. Another State agency
agreed, adding that the medical statement helps program staff ensure
that a child or adult participant's health needs are met. Similarly, an
advocacy organization noted that child nutrition professionals work
diligently to meet non-disability dietary requests and preferences, and
when making a disability-related meal modification, they benefit from a
complete written medical statement. An individual suggested that
program operators obtain a medical statement for all meal
modifications, regardless of whether they fall within or outside of the
meal patterns.
USDA requested specific input on the proposed definition of State
licensed healthcare professional, and whether additional healthcare
professionals should be permitted to submit a medical statement on
behalf of a child or adult participant with a disability. Most
respondents supported USDA's proposal to codify in regulation the
authority allowing State licensed healthcare professionals to submit a
medical statement on behalf of a participant with a disability.
However, respondents shared a variety of perspectives on whether this
authority should be expanded further. For example, one State agency did
not support expanding the scope of who can submit a medical statement
beyond State licensed healthcare professionals, noting that obtaining
the medical statement is an important step in ensuring that all
participant's needs are met with professionalism and sound medical
guidance. An advocacy group agreed, stating that they do not support
expanding the definition to include additional professionals; this
respondent maintained that ``State licensed healthcare professional''
as defined in the proposed rule is the appropriate level of authority
to ensure a child or adult participant's health.
One State agency suggested that allowing registered and licensed
dietitians to write medical statements to support meal modifications
seems very reasonable given this is their field of expertise. A second
State agency agreed, noting that dietitians may be more accessible to
families, reducing the burden of obtaining the necessary documentation
for a meal modification, while a third State agency argued that
dietitians may be better suited than the currently approved
professionals to determine whether a child or adult participant has a
disability that affects their ability to consume certain foods. Another
respondent noted that dietitians tend to be available at the district
level working directly with schoolchildren who could benefit from
disability-related meal modifications. However, several respondents
noted that dietitians are not licensed in all States.
One State agency recommended accepting medical statements from
registered dietitians, speech pathologists, licensed clinical social
workers, and psychologists. Another State agency agreed, noting that
registered dietitians and speech pathologists have extensive training
and are often consulted to develop modification requests for children
with disabilities. Others, including school districts and individuals
who work in schools, agreed, noting expanding the scope of who can
submit a medical statement would facilitate access to meal
modifications for children who need them. However, a few State agencies
expressed concern that adding additional titles would confuse non-
disability preferential requests with medically necessary requests.
Others agreed, cautioning against expanding this authority to
professionals who are not trained in science-based nutrition therapy.
One State agency noted that, within their State, at least 10 types of
professionals already meet the definition of ``State licensed
healthcare professionals.'' This State agency maintained that program
operators have not struggled to obtain the required documentation
needed to provide meal modifications for disability-related needs.
Final Rule
This final rule codifies in regulation that State licensed
healthcare professionals may write medical statements to request
modifications on behalf of child or adult participants with
disabilities in the school meal programs and CACFP. It also defines a
[[Page 32019]]
State licensed healthcare professional as an individual authorized to
write medical prescriptions under State law. Based on public input,
this final rule also permits registered dietitians to write medical
statements to request modifications on behalf of child and adult
participants with disabilities in the school meal programs and in
CACFP. The requirement to accept medical statements from registered
dietitians must be implemented by July 1, 2025, for NSLP and SBP, and
by October 1, 2025, for CACFP. Schools, institutions, and facilities
have the option, but are not required, to implement this change prior
to the implementation date. This final rule also encourages schools,
institutions, and facilities to meet participants' non-disability
dietary preferences when planning and preparing school and CACFP meals.
This final rule updates and reorganizes the regulatory text to
distinguish between disability and non-disability requests more
clearly. Because a dietary need that restricts a participant's diet
could be considered a disability, this final rule removes the
regulatory language regarding participants ``without disabilities who
cannot consume the regular lunch or afterschool snack because of
medical or other special dietary needs.'' \127\ This change reflects
that participant requests for modifications or variations would fall
into one of two categories: disability or non-disability requests.
Additionally, in NSLP regulations, the final rule moves the regulatory
text related to fluid milk substitutes for non-disability reasons to
the section of the regulation that discusses fluid milk requirements (7
CFR 210.10(d)). This change is expected to help clarify the
requirements for fluid milk substitutions for non-disability reasons.
The final rule also adjusts the regulatory language regarding written
requests for fluid milk substitutes, replacing ``medical authority''
with ``State licensed healthcare professional or registered
dietitian.'' This reflects the approach used for fluid milk substitutes
in the proposed rule, which changed ``medical authority'' to ``State
licensed healthcare professional,'' except that this final rule also
includes registered dietitians. This supports USDA's efforts to use
consistent terminology across program regulations. As with prior
regulations and the proposed rule, a child or adult participant's
parent or guardian may also submit a written request for a non-
disability fluid milk substitute in NSLP, SBP, or CACFP. Lastly, this
final rule updates the regulatory definitions of Child in NSLP and SBP
regulations, Child with a disability in NSLP regulations, and Persons
with disabilities in CACFP regulations.
---------------------------------------------------------------------------
\127\ This language reflects regulatory language formerly
included in NSLP regulations at 7 CFR 210.10(m)(2). Similar language
was also previously included in CACFP regulations at 7 CFR
226.20(g)(2).
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Along with State licensed healthcare professionals, USDA is
authorizing registered dietitians to submit medical statements for
disability meal modifications in response to public comment, and due to
the specific education and training requirements they receive.
Registered dietitians are not required to have a State license to
submit medical statements for meal modifications under this rule. USDA
agrees that registered dietitians are well-positioned to determine
specific, nutritionally sound meal modifications to support
participants with disabilities. Registered dietitians are credentialed
professionals, and according to the Commission on Dietetic
Registration, registered dietitians are food and nutrition experts who
have met the Commission on Dietetic Registration's (CDR) criteria to
earn the registered dietitian credential.\128\ USDA acknowledges that
other skilled professionals--such as speech therapists, psychologists,
and social workers--have extensive knowledge in their fields and serve
critical roles in the care of children and adults. While USDA does not
authorize acceptance of medical statements for disability meal
modifications beyond State licensed healthcare professionals and
registered dietitians, USDA expects that State licensed healthcare
professionals and registered dietitians will continue to coordinate
with other key professionals, depending on the specific needs of
participants with disabilities. With this rule, USDA is balancing the
importance of improving participant access to meals that meet their
individual needs with the importance of ensuring that schools,
institutions, and facilities have the information they need to keep
participants with disabilities that restrict their diet safe.
---------------------------------------------------------------------------
\128\ The Commission on Dietetic Registration is the
credentialing agency for the Academy of Nutrition and Dietetics.
See: Commission on Dietetic Registration. Registered Dietitian (RD)
or Registered Dietitian Nutritionist (RDN) Certification. Available
at: https://www.cdrnet.org/RDN.
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USDA recognizes that some respondents are concerned about dietary
requests that are not medically necessary. Schools, institutions, and
facilities are not obligated to meet requests that are not related to a
participant's disability. Additionally, USDA reminds schools,
institutions, and facilities that their obligation is to provide a meal
modification to accommodate a participant's disability, not to provide
an exact product listed on the medical statement. For example, if a
medical statement lists an expensive, brand-name product as a
substitution for a participant with a disability, the school,
institution, or facility should engage in an interactive process with
the participant's parent or guardian to see if it would be safe and
appropriate to provide a lower-cost, generic brand item. In most
instances, a generic brand is sufficient, unless the brand name item is
medically necessary. In general, if a school, institution, or facility
has concerns about a request, they are responsible for working with the
parent or guardian to develop an appropriate modification and, as
applicable, suitable alternatives.
This final rule also codifies changes related to non-disability
meal variations in the school meal programs and CACFP. The prior NSLP
regulations encouraged schools to consider variations for ``ethnic,
religious, or economic reasons.'' In CACFP, the prior regulations noted
potential variations for ``ethnic, religious, economic, or physical
needs'' at the institution or facility level but did not encourage
variations to meet participant preferences. This final rule changes the
school meal and CACFP regulations to encourage program operators to
meet child and adult participant preferences when planning and
preparing meals. As noted in the proposed rule, meeting non-disability
dietary preferences is encouraged, but not required. Although the
proposed rule specifically listed several categories of non-disability
dietary preferences, in the final rule, USDA has instead opted to refer
to ``preferences'' generally. This is not intended to diminish the
importance of the dietary preferences listed in the proposed rule, but
rather, to allow the regulation to be applied broadly to the range of
child and adult participant dietary preferences. These preferences
include, but are not limited to, the non-disability dietary preferences
included in the proposed rule: cultural, ethical, Tribal, and religious
preferences. The Dietary Guidelines emphasize the importance of
considering dietary preferences and cultural traditions and provide a
framework to be customized to reflect the foodways of the diverse
[[Page 32020]]
cultures in the U.S.\129\ Similarly, the NSLP, SBP, and CACFP allow
schools, institutions, and facilities to choose specific foods to offer
at each meal, provided the meal meets the overarching meal pattern
requirements. USDA acknowledges that, due to operational and budgetary
constraints, program operators may not be able to meet all participant
preferences at each meal service; however, USDA encourages program
operators to strive for an inclusive meal service.
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\129\ According to page ix of the Dietary Guidelines, ``A
healthy dietary pattern can benefit all individuals regardless of
age, race, or ethnicity, or current health status. The Dietary
Guidelines provides a framework intended to be customized to
individual needs and preferences, as well as the foodways of the
diverse cultures in the United States.'' U.S. Department of
Agriculture and U.S. Department of Health and Human Services.
Dietary Guidelines for Americans, 2020-2025. 9th Edition. December
2020. Available at: DietaryGuidelines.gov.
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Consistent with the proposed rule, these changes do not apply to
SFSP. USDA acknowledges that many stakeholders would like to see SFSP
included with these changes. However, USDA instead intends to address
SFSP meal pattern requirements separately and comprehensively in future
rulemaking. The existing policy guidance \130\ for SFSP meal
modifications for disabilities remains in effect.
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\130\ U.S. Department of Agriculture, Policy Memorandum on
Modifications to Accommodate Disabilities in the Child and Adult
Care Food Program and Summer Food Service Program, June 22, 2017.
Available at:https://www.fns.usda.gov/cn/modifications-accommodate-disabilities-cacfp-and-sfsp.
---------------------------------------------------------------------------
Accordingly, this final rule amends 7 CFR 210.2, 210.10(d)(2) and
(m), 215.7a(b), 220.8(m), 226.2, and 226.20(g) to revise regulatory
requirements for meal modifications for disability and non-disability
reasons for the school meal programs and CACFP. The change requiring
program operators to accept medical statements from registered
dietitians must be implemented by July 1, 2025, for NSLP and SBP, and
by October 1, 2025, for CACFP.
Section 15: Clarification on Potable Water Requirements
Current Requirement
Current NSLP regulations at 7 CFR 210.10(a)(1)(i) require schools
to make potable water available and accessible without restriction to
children at no charge in the places where lunches are served during the
meal service. When breakfast is served in the cafeteria, current SBP
regulations at 7 CFR 220.8(a)(1) require schools to make potable water
available and accessible without restriction to children at no charge.
USDA issued policy guidance to support implementation of this provision
in July 2011. In that policy guidance, USDA specified that schools must
serve plain water to meet the potable water requirement.\131\
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\131\ U.S. Department of Agriculture. Water Availability During
NSLP Meal Service. July 12, 2011. Available at: https://www.fns.usda.gov/cn/water-availability-during-nslp-meal-service.
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Proposed Rule
In the 2020 proposed rule, USDA proposed to allow schools to offer
calorie-free, naturally flavored, noncarbonated water to meet the
potable water requirement. Under the proposed rule, schools would have
the option to continue to offer plain water to meet the potable water
requirement but could also meet the requirement by offering naturally
flavored water.
Public Comments on 2020 Proposed Rule
USDA received 85 comments on the potable water provision of the
2020 proposed rule; all were unique comments. Of these, 37 supported
the proposal, 29 were opposed, and 19 were mixed.
Proponents, including State agencies, school districts, and
industry respondents, argued that offering naturally flavored water
would increase water appeal and consumption. For example, one advocacy
group suggested that water infused with lemons, berries, cucumbers, or
mint would boost student water consumption. A State agency agreed that
water with cucumber, lemon, or herbs would be a low-cost way to improve
the palatability of water.
A few respondents supported expanding potable water options, but
only to water flavored with fresh or frozen fruits or vegetables. Other
respondents argued that this provision should not permit water with
food additives or sweeteners. Some respondents requested clarification
on the type of water schools could offer to meet the potable water
requirement under this provision.
One opponent argued children's mealtime beverage options should be
limited to plain water, milk, and limited amounts of 100 percent fruit
or vegetable juice. Another opponent suggested consuming flavored water
would adapt children's palates toward sweeter beverages, moving them
away from the natural taste of water. Several respondents were opposed
to water flavored with certain ingredients, such as ``artificial
sweeteners'' and other additives. One advocacy group argued that the
goal of the potable water provision is to ensure clean drinking water
for children and maintained there is no reason to revise the current
standard.
Some respondents offered alternatives or suggestions for
implementation. For example, one State agency did not oppose allowing
water flavored with fruits, vegetables, and herbs, but emphasized this
option should be in addition to plain potable water. This State agency
was concerned about food allergies and indicated that maintaining plain
potable water during mealtimes would be important for children who
cannot consume water with fruits, vegetables, or herbs. Regarding water
with fruits or vegetables added, a few advocacy groups suggested
clarifying that fruits or vegetables used to flavor water may not count
toward the meal pattern requirements. Several respondents, including
proponents and opponents, noted the importance of following food safety
guidelines when offering fruit- or vegetable-infused water.
Respondents also highlighted the importance of water consumption
and hydration. One advocacy group emphasized the importance of ensuring
schools have safe drinking water. Another respondent suggested
investing in basic plumbing, as well as installing water bottle filling
stations in schools. A few advocacy organizations stated support for
policies and efforts that expand safe water options for students.
Final Rule
This final rule will not adopt the 2020 proposal to allow schools
to offer calorie-free, naturally flavored, noncarbonated water to meet
the potable water requirement. This decision is supported by public
comments, which noted that some children may have food allergies that
prevent them from consuming water with fruits, vegetables, or herbs. It
is also responsive to public comments that raised concerns about other
ingredients, such as sweeteners or additives. Under this final rule,
schools will continue to be required to make plain potable water
available and accessible without restriction to children at no charge
during the meal service. To clarify this requirement, this final rule
adds the word ``plain'' to the regulations requiring potable water to
be offered with school meals at 7 CFR 210.10(a)(1)(i) and 220.8(a)(1).
As with current regulations, this requirement applies in places where
lunches are served during the meal service, including lunches served
outside of the cafeteria. For breakfast, as with current regulations,
this requirement applies when breakfast is served in the cafeteria.
[[Page 32021]]
Maintaining the requirement to offer plain potable water responds
to public comments that emphasized the importance of prioritizing
access to plain water for children who prefer it, or who cannot consume
water with fruits, vegetables, or herbs due to food allergies. However,
USDA wishes to clarify that the requirement to offer plain potable
water does not limit schools' ability to also offer potable water with
fruits, vegetables, and herbs added, in addition to the required plain
water. For example, a school may offer fruit-infused water at lunch
provided children also have access to plain potable water during the
meal service. State agencies and schools are reminded that reasonable
costs associated with providing potable water are an allowable cost to
the nonprofit school food service account. Additionally, based on
public comment, USDA clarifies that fruits, vegetables, and herbs added
to plain potable water do not count toward the meal pattern
requirements for fruits or vegetables. Schools also are not required to
count the negligible calorie content of water infused with fruits,
vegetables, or herbs toward the weekly calorie limits.
USDA also appreciates public comments regarding the importance of
food safety when offering water with fruits, vegetables, or herbs.
Regulations at 7 CFR 210.13(a) require school food authorities to
ensure that food storage, preparation, and service is in accordance
with the sanitation and health standards established under State and
local law and regulations. School food authorities must also develop a
written food safety program that covers any facility or part of a
facility where food is stored, prepared, or served (7 CFR 210.13(c)).
Schools opting to offer water with fruits, vegetables, or herbs must
continue to follow the food safety requirements as detailed in 7 CFR
210.13(c), as well as applicable State and local requirements.
Accordingly, this final rule amends 7 CFR 210.10(a)(1)(i),
210.18(h)(2)(v), and 220.8(a)(1) to add the word ``plain'' to the
potable water requirements. Schools are not required to change menus or
operations as a result of this technical change.
Section 16: Synthetic Trans Fats
Current Requirement
Current regulations prohibit synthetic trans fat in the school
lunch and school breakfast programs, and in foods sold to children on
campus during the school day (7 CFR 210.10(f)(4), 220.8(f)(4), and
210.11(g)). This requirement was included in Nutrition Standards in the
National School Lunch and School Breakfast Programs \132\ and in
National School Lunch Program and School Breakfast Program: Nutrition
Standards for All Foods Sold in School as Required by the Healthy,
Hunger-Free Kids Act of 2010.\133\ The synthetic trans fat prohibition
was phased in, beginning with the NSLP, in SY 2012-2013.
---------------------------------------------------------------------------
\132\ U.S. Department of Agriculture. Nutrition Standards in the
National School Lunch and School Breakfast Programs. (77 FR 4088,
January 26, 2012). Available at: https://www.federalregister.gov/documents/2012/01/26/2012-1010/nutrition-standards-in-the-national-school-lunch-and-school-breakfast-programs.
\133\ U.S. Department of Agriculture. National School Lunch
Program and School Breakfast Program: Nutrition Standards for All
Foods Sold in School as Required by the Healthy, Hunger-Free Kids
Act of 2010. (81 FR 50132, July 29, 2016). Available at: https://www.federalregister.gov/documents/2016/07/29/2016-17227/national-school-lunch-program-and-school-breakfast-program-nutrition-standards-for-all-foods-sold-in.
---------------------------------------------------------------------------
In 2015, the FDA determined that partially hydrogenated oils, the
major source of artificial (synthetic) trans fat in the food supply,
were no longer ``Generally Recognized as Safe,'' or GRAS. Based on this
determination, the FDA took regulatory action to eliminate partially
hydrogenated oils (and, therefore, synthetic trans fats) from the
United States food supply. While the compliance date for certain uses
was extended, the compliance date for most uses of partially
hydrogenated oils was June 18, 2018.\134\ As of January 2020, food
manufacturers were no longer allowed to sell foods containing trans
fats. This FDA action effectively banned trans fats from being added to
foods made or sold in the U.S., making additional regulations
prohibiting synthetic trans fats in school meals unnecessary.
---------------------------------------------------------------------------
\134\ U.S. Food and Drug Administration. Final Determination
Regarding Partially Hydrogenated Oils (Removing Trans Fat).
Available at: https://www.fda.gov/food/food-additives-petitions/final-determination-regarding-partially-hydrogenated-oils-removing-trans-fat.
---------------------------------------------------------------------------
Proposed Rule
In the 2020 proposed rule, USDA proposed to remove the synthetic
trans fat prohibition for NSLP, SBP, and foods sold to children on
campus during the school day. The proposed rule stated that under this
change, schools would not have to comply with, and State agencies would
not have to monitor, synthetic trans fat requirements. As noted in the
proposed rule, based on the FDA's action to remove synthetic trans fat
from the United States food supply, USDA determined that school meal
regulations prohibiting synthetic trans fat were no longer necessary.
Because FDA took action to remove synthetic trans fats from the food
supply, USDA concluded that maintaining additional regulations to
prohibit synthetic trans fats in school meals was unnecessary.
Public Comments on 2020 Proposed Rule
USDA received 29 comments on the synthetic trans fat provision of
the 2020 proposed rule; all were unique comments. Of these, 14
supported the proposal, 14 were opposed, and 1 was mixed.
Proponents, including industry respondents and advocacy groups,
supported removing the synthetic trans fat prohibition due to the FDA's
actions to remove synthetic trans fat from the food supply. One
industry respondent supported the change but questioned how trans fat
that occurs naturally in foods would be monitored. However, another
industry respondent noted that naturally occurring trans fat, which is
present in some meat and dairy products, occurs at very low levels. A
few State agencies supported the proposal. One State agency noted that
synthetic trans fat would not be a concern in school meals after its
elimination from the U.S. food supply. Another State agency agreed but
noted that the FDA's compliance date could be extended; this State
agency recommended that USDA delay implementation of its regulation
until synthetic trans fat is fully eliminated from the food supply.
A few opponents cited general health concerns related to synthetic
trans fat consumption, without acknowledging the elimination of
synthetic trans fat from the food supply. Several other opponents,
including State agencies and Attorneys General from several States,
cited concerns about the FDA's compliance date for the elimination of
synthetic trans fat. One State agency provided mixed feedback,
recommending that USDA align its final standard with the FDA's
compliance date. Another State agency opponent cited concerns about
synthetic trans fat in non-domestic foods.
Final Rule
This final rule removes the dietary specification prohibiting
synthetic trans fat in the school lunch and breakfast programs and in
foods sold to children on campus during the school day. Under this
change, schools will no longer need to include the synthetic trans fat
prohibition in their procurement documentation, and State agencies will
no longer need to review product labels or manufacturer specifications
for compliance with the synthetic trans fat dietary specification. This
change reduces burden by
[[Page 32022]]
eliminating a requirement that USDA determined is no longer necessary
due to the FDA's actions to eliminate synthetic trans fat from the U.S.
food supply.
USDA acknowledges respondent concerns about the compliance date for
the FDA's order eliminating synthetic trans fat from the U.S. food
supply. While implementation of the FDA's order began in June 2018, at
the time the 2020 proposed rule published, the compliance date for
certain uses of partially hydrogenated oils had been extended. The
final compliance date of January 2021, which extended the compliance
date for specific, limited petitioned uses of partially hydrogenated
oils, has now been in effect for several years.\135\
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\135\ See: ``Implementation.'' U.S. Food and Drug
Administration. Final Determination Regarding Partially Hydrogenated
Oils (Removing Trans Fat). Available at: https://www.fda.gov/food/food-additives-petitions/final-determination-regarding-partially-hydrogenated-oils-removing-trans-fat.
---------------------------------------------------------------------------
USDA appreciates concerns one respondent raised regarding synthetic
trans fat in non-domestic foods. The elimination of synthetic trans fat
applies to all foods sold in the U.S food supply, including non-
domestic foods. Additionally, school food authorities are required by
law to purchase domestic commodities or products to the maximum extent
practicable. This rulemaking strengthens the existing Buy American
requirements and establishes a new threshold limit for non-domestic
food purchases (see Section 18: Buy American). Further, USDA data from
SY 2017-2018 found that fruits and vegetables are by far the most
common non-domestic food purchases for school food authorities.\136\
Therefore, USDA does not expect the limited use of non-domestic foods
in the NSLP and SBP to result in an increase in synthetic trans fats in
school meals.
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\136\ Of the 26 percent of school food authorities that reported
using exceptions to the Buy American provision in SY 2017-2018, 93
percent reported using them to purchase fruit, while 53 percent
reported using them to purchase vegetables. By comparison, 18
percent reported using them to purchase ``other'' foods, such as
yeast, oils, and spices, and less than 10 percent each reported
using them to purchase grains or meat/meat alternates. See Exhibit
4: Among SFAs that Reported Using an Exception to the Buy American
Provision, Reasons for Using an Exception and Products Purchased.
U.S Department of Agriculture, Food and Nutrition Service, Office of
Policy Support, Child Nutrition Program Operations Study (CN-OPS-
II): SY 2017-18. Beyler, Nick, Jim Murdoch, and Charlotte Cabili.
Project Officer: Holly Figueroa. Alexandria, VA: November 2022.
---------------------------------------------------------------------------
Finally, USDA acknowledges public comments about naturally
occurring trans fat. The FDA notes that trans fat occurs naturally in
small amounts in some meat and dairy products and is present at very
low levels in other edible oils.\137\ In the 2012 rule, USDA clarified
that the trans fat prohibition for school meals would not apply to
naturally occurring trans fat present in some meat and dairy products.
Rather, it would apply to synthetic trans fat, which the 2012 rule
preamble noted ``are found in partially hydrogenated oils used in some
margarines, snack foods, and prepared desserts.'' \138\ This final rule
does not impact naturally occurring trans fat, which continue to be
permitted in school meals.
---------------------------------------------------------------------------
\137\ U.S. Food and Drug Administration. Final Determination
Regarding Partially Hydrogenated Oils (Removing Trans Fat).
Available at: https://www.fda.gov/food/food-additives-petitions/final-determination-regarding-partially-hydrogenated-oils-removing-trans-fat.
\138\ U.S. Department of Agriculture. Nutrition Standards in the
National School Lunch and School Breakfast Programs. (77 FR 4088,
January 26, 2012). Available at: https://www.federalregister.gov/d/2012-1010/p-161.
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Accordingly, this final rule amends 7 CFR 210.10(a)(3), (b)(1),
(c), (f), (g), (h), and (j), 210.11(f) and (g)(2), 210.18(l)(2)(iii),
and 220.8(a)(3), (b)(1), (c), (f) through (h), and (j). This change
reduces burden on State agencies and schools. Schools are not required
to change menus or operations as a result of this change.
Section 17: Professional Standards: Hiring Exception for Medium and
Large Local Educational Agencies
Current Requirement
Current regulations at 7 CFR 210.30(b)(1) describe the hiring
standards for school nutrition program directors; the standards vary
for directors operating in small, medium, and large local educational
agencies. Specifically, the hiring requirements for school nutrition
program directors in medium (2,500 to 9,999 students) and large (10,000
or more students) local educational agencies are as follows:
According to 7 CFR 210.30(b)(1)(ii), school nutrition
program directors with local educational agency enrollment of 2,500 to
9,999 students (i.e., a medium local educational agency) must have:
A bachelor's degree, or equivalent educational experience,
with an academic major or concentration in food and nutrition, food
service management, dietetics, family and consumer sciences, nutrition
education, culinary arts, business, or a related field;
A bachelor's degree, or equivalent educational experience,
with any academic major or area of concentration, and a State-
recognized certificate for school nutrition directors;
A bachelor's degree in any academic major and at least two
years of relevant experience in school nutrition programs; or
An associate's degree, or equivalent educational
experience, with an academic major or area of concentration in food and
nutrition, food service management, dietetics, family and consumer
sciences, nutrition education, culinary arts, business, or a related
field and at least two years of relevant school nutrition program
experience.
According to 7 CFR 210.30(b)(1)(iii), school nutrition
program directors with local educational agency enrollment of 10,000 or
more students (i.e., a large local educational agency) must have:
A bachelor's degree, or equivalent educational experience,
with an academic major or area of concentration in food and nutrition,
food service management, dietetics, family and consumer sciences,
nutrition education, culinary arts, business, or a related field;
A bachelor's degree, or equivalent educational experience,
with any academic major or area of concentration, and a State-
recognized certificate for school nutrition directors; or
A bachelor's degree in any major and at least five years
of experience in management of school nutrition programs.
Proposed Rule
USDA proposed to allow State agency discretion to approve the
hiring of an individual to serve as a school nutrition program director
in a medium or large local educational agency, for individuals who have
10 or more years of school nutrition program experience but who do not
hold a bachelor's or an associate's degree. Additionally, USDA proposed
to clarify in regulation that State agencies may determine what counts
as ``equivalent educational experience'' for the hiring standards. The
proposed rule suggested that this change would allow highly experienced
individuals to advance their careers in school food service.
Additionally, the proposal could help to ease hiring challenges that
USDA understands some medium and large local educational agencies
experience.
Public Comments
USDA received 297 comments on the proposed changes for professional
standards including 169 unique comments. Of these, 173 supported the
proposal, including 106 unique comments, 23 were opposed, all of which
were unique comments, and 101 were mixed, including 40 unique comments.
State agencies, school nutrition professionals, advocacy groups,
industry respondents, school
[[Page 32023]]
districts, dietitians, and individuals submitted comments.
One school district proponent described the proposal as a ``solid
move'' that would benefit capable professionals with relevant work
experience; this proponent affirmed such individuals are an asset to
school nutrition programs. Another school district agreed, stating that
the leadership and achievements of experienced candidates should be
valued. Several respondents suggested that this proposal would allow
knowledgeable professionals to use their skills to benefit schools and
students, with some citing their personal experiences in the field of
school nutrition. An individual maintained this change would be
especially useful in rural communities with small applicant pools and
limited ability to hire directors that meet the current education
requirements. A school district agreed, stating that any change to
expand the pool of candidates would be welcome.
An individual proponent affirmed that the proposal would expand
opportunity for school districts to hire qualified candidates from
within their district. Similarly, an industry respondent suggested the
proposal would allow candidates in assistant director positions to
advance in their careers. A State agency agreed, asserting that this
change would allow school districts to promote experienced employees
who may be the best candidate for the job. A school district suggested
the proposal would allow a path for growth in the field of child
nutrition while still requiring the experience needed to do the job.
An advocacy group cited a Congressional Research Service report
which indicated that 94 percent of foodservice employees in U.S.
elementary and secondary schools are women. This respondent suggested
that the degree requirement creates an inequity to advancement in
school nutrition, citing the cost of obtaining a degree as an example
of a barrier. While this respondent supported the proposal, they also
urged USDA to promote greater economic opportunity for the school
nutrition workforce, including support for professional development.
Similarly, a State agency acknowledged that the ability to obtain a
degree is ``often a benefit of class and economic privilege'' and
supported valuing experience equally. One respondent, citing their
personal experience, described working toward an advanced degree as
``time consuming and extremely expensive.'' This respondent also raised
concerns about student loan debt, particularly for individuals who have
already been working in child nutrition for decades. A school district
agreed, stating that experience should matter just as much as a degree,
particularly given barriers many people face in obtaining a degree.
A national organization representing tens of thousands of school
nutrition professionals noted that the professional standards
requirements ensure that school nutrition directors have the education
and skills necessary to excel in their roles and to work alongside
principals, superintendents, and other highly credentialed individuals.
At the same time, this organization supported allowing a minimum of 10
years of school nutrition program experience to substitute for a degree
due to hiring and recruitment issues that some schools are
experiencing. Similarly, another respondent cited concerns about
staffing and workload challenges, and suggested the proposal would
benefit schools. An advocacy group emphasized that this proposal could
help to address hiring issues by expanding access to promotion
opportunities within school nutrition. A State agency agreed,
suggesting this proposal would reward dedicated school nutrition staff
and encourage career growth.
Other respondents opposed the proposal. One school district argued
that a college degree is necessary for the director position in medium
and large districts. This respondent noted that this position requires
knowledge of food safety, personnel management, and how to ``run a
business.'' A few other school districts agreed, arguing higher
education is necessary to succeed as a director in medium and large
districts. A dietitian maintained that years of experience should not
substitute for a degree; along with formal education, this respondent
emphasized the importance of ongoing learning. Another opponent argued
that the requirements placed on school nutrition professionals have not
lessened; therefore, USDA should not provide flexibility to the hiring
standards. A school district opponent described their education
credentials, maintaining that their advanced degree provided them with
skills to balance budgets and develop menus for students with special
diets. This respondent urged USDA to uphold the current standards.
Another school district argued that the current degree requirement
gives school nutrition directors credibility when interacting with
school administrators, staff, and families.
In addition to general feedback on the proposed changes, USDA
requested public input on the following questions:
Is it reasonable to allow medium and large local
educational agencies to substitute 10 years of school nutrition program
experience for a bachelor's or an associate's degree when hiring a
school nutrition program director?
Should USDA also consider allowing medium and large local
educational agencies to substitute other types of experience, such as
experience in other food service sectors?
How often do State agencies and school districts
anticipate using the hiring exception?
What strategies do local educational agencies currently
use to recruit qualified school nutrition program directors?
A handful of respondents provided feedback in response to the first
question, which was about the number of years of experience that USDA
should allow to substitute for a degree when hiring a director in a
medium or large local educational agency. A dietitian argued that 10
years of real-world experience would provide an individual the
knowledge needed to succeed as a director. An advocacy group asserted
that a school nutrition professional with 10 years of experience would
have participated in many hours of training, in addition to their
regular job duties, making them ``very capable of doing an excellent
job as a director.'' An industry respondent agreed that 10 or more
years of child nutrition program experience ``is a suitable alternative
to traditional education.'' One respondent suggested 10 years of
experience is appropriate for large school districts and suggested 5 to
7 years could be appropriate for medium school districts, provided the
candidate had experience with procurement, menu planning, and personnel
management. A few school districts suggested that USDA consider
lowering the number of years from 10 to 5 years for medium and large
school districts. A State agency agreed, maintaining that allowing 5
years of school nutrition program experience to substitute for a degree
would further ease hiring challenges faced by some school districts.
Another State agency suggested that it would be reasonable to require 4
years of child nutrition program experience, rather than 10 years,
given it typically takes about 4 years to complete a bachelor's degree.
A school district respondent did not provide a specific number of years
of experience needed, but emphasized the value of institutional
knowledge, which they conveyed is the result of ``many years spent
doing the work.''
Respondents also addressed whether USDA should allow other types of
experience, such as experience in other
[[Page 32024]]
food service sectors, to substitute for a degree. One school district
encouraged USDA to allow other food service experience, including
military food service, to count when assessing a candidate's potential.
A State agency agreed, provided the work experience includes duties
similar in size and scope to the role of a school nutrition program
director. This State agency noted that other food service sectors may
provide similar experience in procurement, menu planning, ordering,
receiving, invoicing, and inventory control. Conversely, given the
specific requirements of school meal programs, a national organization
representing tens of thousands of school nutrition professionals
maintained that only school nutrition program experience should be
allowed to substitute for a degree. This organization further suggested
that this experience should include managing or supervising personnel
and overseeing school meal programs at the district level for multiple
sites. A school district proponent also emphasized the importance of
child nutrition program experience, as opposed to commercial food
service experience. A State agency agreed, noting that other sectors
are not as regulated as USDA food service programs, which may make the
transition from another area of food service to school nutrition
difficult for a new director.
A few respondents provided input on the third question regarding
how often the proposed hiring exception would be used. One State agency
noted that they receive at least two requests for hiring exceptions for
medium and large school districts per year; this respondent supported
the proposal. A second State agency proponent expected to receive about
four requests for an exception per year, with the potential for more,
should the proposal be finalized. A third State agency did not directly
address the question, but shared one real-world example where this
exception could have been used to hire a highly qualified candidate
with 20 years of experience in their State. This State agency supported
the proposal, describing it as ``reasonable.'' On the other hand, one
State agency did not anticipate the flexibility would be used often,
suggesting that medium and large school districts would opt to require
a bachelor's or an associate's degree for director positions.
A few respondents shared strategies that school districts use to
recruit qualified school nutrition program directors. One State agency
noted that school districts recruit qualified candidates through
advertisements on websites, search engines, and social media, and by
holding job fairs. Another State agency suggested that partnerships
with career tech centers and college programs have helped some school
districts, while acknowledging that recruiting directors can be a
challenge. One respondent stated that school districts post position
openings through ``normal recruitment channels.''
Some respondents offered alternatives to the proposal, or suggested
changes. For example, a few respondents recommended that USDA outline
specific types of experience candidates must have to qualify for the
hiring exception, in addition to their years of experience. A school
district emphasized the importance of understanding finances, which
they argued is crucial for making strategic decisions. An advocacy
group suggested that USDA require experience in a supervisory role and
in counting, claiming, menu development, and other areas of program
administration. This respondent also suggested requiring a certain
number of technical school or college credits to qualify for this
exception. A dietitian recommended requiring management skills and
emphasized the importance of ensuring directors can interpret
regulations, plan menus, oversee a budget, and coach staff. Another
respondent suggested that USDA specify whether the years of experience
would need to be consecutive for a candidate to qualify for the
exception.
Other respondents suggested that USDA narrow the scope of the
proposed change or add other requirements to the process. One
respondent recommended that medium and large school districts should
only be allowed to use this exception if they implement a plan for the
candidate to earn a degree. A State agency recommended limiting this
exception to instances when there is documentation that no candidates
who applied for the position met the education criteria. An advocacy
group recommended the exception only be allowed in rural areas, arguing
that urban school districts can find candidates that meet the existing
standards. However, another advocacy group acknowledged differences in
local needs based on school district size and urbanicity, and suggested
State agencies should have discretion to approve the hiring of a
director based on specific local context. Going further, an individual
recommended that it should be the school district's decision whether to
use the hiring exception, presumably as opposed to requiring State
agency approval. Another respondent suggested eliminating the education
requirements entirely, arguing if someone can do the job based on their
skills, they should be eligible. A form letter campaign supported the
proposal but suggested that USDA seek guidance from school nutrition
professionals to make sure the change is implemented in a way that is
``as helpful as possible.''
A few respondents provided feedback on school nutrition hiring and
training requirements in general. One advocacy group acknowledged the
importance of the professional standards requirements, noting that they
ensure school nutrition program personnel have the knowledge and skills
they need to operate the programs successfully. This respondent
suggested that the professional standards have supported improvements
in meal quality in their State and nationwide. A few respondents noted
the value of mentoring for a successful career in school nutrition.
Another emphasized the important role of their State agency, adding
that they feel well supported by their State agency in their continued
learning.
Final Rule
This final rule codifies the proposal to allow State agency
discretion to approve the hiring of an individual to serve as a school
nutrition program director in a medium or large local educational
agency, for individuals who have 10 or more years of school nutrition
program experience but who do not hold a bachelor's or an associate's
degree. Directors hired under this exception must have a high school
diploma or GED. USDA expects that this change will allow highly
experienced and qualified individuals to advance their careers in
school nutrition. This change is also expected to ease hiring
challenges which USDA understands are experienced by some medium and
large local educational agencies.
USDA appreciates public input on the number of years of experience,
and the type of experience, that should qualify a candidate for this
exception. Several respondents acknowledged the importance of
experience in school nutrition, including experience developing menus
that meet the regulatory meal pattern requirements, counting and
claiming meals, and maintaining compliance with other program rules.
USDA agrees with public comments that suggested a candidate should have
school nutrition experience to qualify for this exception. Further,
USDA agrees with public comments stating that 10 years is an
appropriate amount of time to substitute for a degree. The candidate's
experience does not need to be in consecutive years; a
[[Page 32025]]
candidate only needs to accrue a total of 10 years of experience in
school nutrition to qualify for this exception.
This final rule also codifies in regulation that State agencies may
determine what counts as ``equivalent educational experience'' for the
hiring standards. USDA provided the following examples in the proposed
rule, which were supported by a national organization representing tens
of thousands of school nutrition professionals:
If a candidate for a director position in a medium local
educational agency does not have an associate's degree, but has more
than 60 college credits in a relevant field, the State agency would
have the discretion to approve the hiring of that candidate.
If a candidate for a director position in a large local
educational agency does not have a bachelor's degree, but has an
associate's degree, is a School Nutrition Specialist certified by the
School Nutrition Association, and is a Nutrition and Dietetics
Technician, Registered (NDTR) \139\ certified by the Academy of
Nutrition and Dietetics, then the State agency has the discretion to
approve the hiring of that candidate.
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\139\ Nutrition and dietetics technicians, registered (NDTRs)
are educated and trained at the technical level of nutrition and
dietetics practice for the delivery of safe, culturally competent,
quality food and nutrition services. See: Academy of Nutrition and
Dietetics, What is a Nutrition and Dietetics Technician Registered?
Available at: https://www.eatrightpro.org/about-us/what-is-an-rdn-and-dtr/what-is-a-nutrition-and-dietetics-technician-registered.
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These are just two possible scenarios where a State agency may
choose to count a candidate's experience toward the hiring requirements
as ``equivalent educational experience.'' State agencies have
discretion to determine that other types of experience should count
toward ``equivalent educational experience'' on case-by-case basis.
As described in 7 CFR 210.15(b)(7), school food authorities must
maintain records to demonstrate compliance with the professional
standards for school nutrition program directors, managers, and
personnel, including the hiring requirements. This final rule does not
change the overall recordkeeping requirements for professional
standards. However, to demonstrate compliance when using this
exception, the school food authority and State agency would need to
maintain documentation of the exception. For example, the school food
authority and State agency could maintain documentation of the school
food authority's request for the exception, and documentation of the
State agency's approval. Similarly, this final rule does not change the
Administrative Review requirements for professional standards.
Professional standards will continue to be evaluated as part of the
General Areas of Review, as described at 7 CFR 210.18(h)(2)(ix).
USDA appreciates respondent feedback about the importance of
ensuring school nutrition program directors in medium and large
districts have the skills needed to succeed in their jobs. Respondents
emphasized that obtaining a bachelor's or an associate's degree is an
effective way for candidates to demonstrate they have the knowledge and
skills needed to succeed as a director, which respondents stressed can
be a challenging position. Directors hired under this provision are
encouraged, but not required, to work toward a degree in food and
nutrition, food service management, dietetics, family and consumer
sciences, nutrition education, culinary arts, business, or a related
field. While USDA acknowledges the value in obtaining a degree, USDA
has determined that hands-on experience in the school nutrition
programs is also an effective way for candidates to demonstrate they
have the knowledge and skills needed to succeed as a director in a
medium or large school district. USDA also recognizes the importance of
providing an alternative option for school nutrition professionals to
advance in their careers, even if they are unable to obtain a degree
due to financial or other barriers. This exception is available at the
discretion of the State agency. School districts and State agencies are
encouraged to work together to apply this exception on case-by-case
basis as needed and as deemed appropriate.
In public comments, respondents recommended that USDA require
candidates to meet specific criteria, in addition to the candidate's
years of experience, to qualify for this exception. In this final rule,
USDA will not require candidates to meet specific criteria, beyond the
required years of experience. However, school districts and State
agencies may choose to require candidates to have specific types of
experience in order to qualify under this exception. For example, a
school district could require candidates to have experience managing a
budget or supervising staff to qualify for the director position. As
this exception is available at the State agency's discretion, State
agencies may also apply additional criteria when using the exception.
As proposed, this final rule removes the existing table at 7 CFR
210.30(b)(2), which provided a summary of the school nutrition program
director hiring standards. USDA determined the amount of information
within the table was excessive, and instead of maintaining the table in
regulations, will develop a more user-friendly table summarizing the
hiring standards to be posted on the USDA Food and Nutrition Service
public website. The hiring standards remain in regulation at 7 CFR
210.30(b)(1); therefore, this change--which only removes the summary
table--is not substantive. In this final rule, USDA also made
corrections to current paragraph leveling in 7 CFR 210.30 and reprinted
the table summarizing required annual training with non-substantive
changes to improve usability.
USDA acknowledges and appreciates public comments from school
nutrition directors and staff regarding the importance of their job
duties. School nutrition professionals are incredibly hardworking
individuals who care deeply about the children they serve. Many school
nutrition professionals, some of whom have worked in school nutrition
for decades, submitted public comments describing the great pride they
take in their work. USDA also recognizes that school nutrition
professionals have faced many challenges in their work over the past
several years, including serving as essential, front-line workers
during the COVID-19 pandemic and more recently, responding to supply
chain disruptions and high food costs. USDA remains committed to
supporting school nutrition professionals throughout implementation of
this final rule and beyond. Additionally, Team Nutrition's Professional
Standards Resources website \140\ provides a variety of resources which
support school nutrition professionals with implementing and meeting
the professional standards requirements. These include the Guide to
Professional Standards, the Professional Standards Training Database,
and the Professional Standards Training Tracker Tool, among others.
More information regarding USDA's efforts to support schools and school
nutrition professionals may be found in Section 1: Background of this
preamble.
---------------------------------------------------------------------------
\140\ U.S. Department of Agriculture. Professional Standards.
Available at: https://www.fns.usda.gov/cn/professional-standards.
---------------------------------------------------------------------------
Accordingly, this final rule amends 7 CFR 210.30(b)(1) to allow
State agency discretion to approve the hiring of an individual to serve
as a school nutrition program director in a medium or large local
educational agency, for individuals who have 10 years or more of school
nutrition program experience but who do not hold a bachelor's or an
[[Page 32026]]
associate's degree. At the discretion of the State agency, this change
provides local educational agencies an optional hiring flexibility.
Schools are not required to change menus or operations as a result of
this provision.
Section 18: Buy American
This section includes the following sub-sections:
Section 18A describes limited exceptions to the Buy
American requirement.
Section 18B details Buy American exception documentation
and reporting requirements.
Section 18C explains procurement procedures.
Section 18D defines the term ``substantially'' as it
relates to the Buy American requirements.
Section 18E clarifies requirements for harvested farmed
and wild caught fish.
Section 18A: Limited Exceptions to the Buy American Requirement
Current Requirement
The Buy American provision established under the National School
Lunch Act (NSLA, 42 U.S.C. 1760(n)) and program regulations at 7 CFR
210.21(d)(2) and 220.16(d)(2) requires school food authorities to
purchase domestic commodities or products ``to the maximum extent
practicable.'' This provision supports the mission of the child
nutrition programs, which is to serve children nutritious meals and
support American agriculture. Through policy guidance, USDA has
detailed limited exceptions to the Buy American requirements.\141\
These limited exceptions apply when the purchase of domestic foods is
not practicable and include the following:
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\141\ U.S. Department of Agriculture. SP 38-2017 Compliance with
and Enforcement of the Buy American Provision in the NSLP. June
2017. Available at: https://www.fns.usda.gov/nslp/compliance-enforcement-buy-american.
---------------------------------------------------------------------------
The product is not produced or manufactured in the U.S. in
sufficient and reasonably available quantities of a satisfactory
quality; or
Competitive bids reveal the costs of a U.S. product are
significantly higher than the non-domestic product.
Currently, no regulations establish a definition of ``significantly
higher'' when using an exception to the Buy American provision. The
school food authority is responsible for determining the dollar amount
or percentage which constitutes a significantly higher cost for a
domestic product, thus permitting the use of an exception.
The Buy American provision is applicable to school food authorities
located in the 48 contiguous United States. Although Alaska, Hawaii,
and the U.S. territories are exempt from the Buy American provision,
school food authorities in Hawaii and Puerto Rico are required to
purchase food products produced in their respective State or territory
in sufficient quantities, as determined by the school food authority,
to meet school meal program needs, per 7 CFR 210.21(d)(3) and 42 U.S.C.
1760(n)(4)).
Proposed Rule
USDA proposed to strengthen the Buy American requirement by
maintaining the current limited exceptions and establishing a new
threshold limit for school food authorities that use these exceptions.
USDA proposed to codify the following exceptions, previously issued
through guidance, for when non-domestic foods may be purchased by
school food authorities:
The product is not produced or manufactured in the U.S. in
sufficient and reasonably available quantities of a satisfactory
quality; or
Competitive bids reveal the costs of a U.S. product are
significantly higher than the non-domestic product.
Additionally, USDA proposed to institute a 5 percent ceiling on the
non-domestic commercial foods a school food authority may purchase per
school year, based on total commercial food costs. Section 12 of the
NSLA (42 U.S.C. 1760) mandates that the Secretary require school food
authorities to ``purchase, to the maximum extent practicable, domestic
commodities or products.'' Under the statute, this requirement applies
to school food authorities located in the contiguous United States and
a purchase of a domestic commodity or product for the school lunch or
school breakfast program. By proposing a cap on when school food
authorities may procure non-domestic commercial foods, USDA is
balancing the statutory mandate to Buy American and the intent of the
Buy American provision at Section 2 of the NSLA (42 U.S.C. 1751) to ``.
. . encourage the domestic consumption of nutritious agricultural
commodities and other foods . . .'' while also recognizing that there
are times when purchasing domestic foods is not practicable for
schools. Finally, consistent with current guidance, USDA proposed to
clarify in regulation that school food authorities have discretion to
determine whether an exception applies.
Public Comments
USDA received 138 comments on the proposed limited exceptions to
the Buy American requirement. Of these, 20 supported the proposed
standard, 72 were opposed, and 46 were mixed. Most respondents
supported codifying the current exceptions for products not available
domestically, but some requested that the significant cost differential
be defined or eliminated. Most expressed concern that the 5 percent cap
on non-domestic commercial foods is too restrictive.
Importance of Supporting American Agriculture
Several respondents, including, State agencies, Federal elected
officials, advocacy groups, and individuals, supported strengthening
the Buy American provision. One respondent stated that the proposal
supports local farmers and the economy while also protecting the
environment by reducing emissions from transporting food long
distances. Another respondent affirmed that strengthening the Buy
American provision would increase sourcing from local and regional
producers. Other respondents supported the proposal for economic
reasons. For example, a trade association stated that the 5 percent cap
would disincentivize the use of U.S. taxpayer dollars to purchase non-
domestic food products. An advocacy group stated that strengthening the
provision would maximize public dollars spent on our nation's food and
farm economy.
Implementation Challenges: Loss of Variety for Students
Some respondents opposed the proposal, including professional
organizations, school districts, dietitians, and individuals. One
professional organization asserted that the proposed 5 percent of total
costs per school year ceiling on non-domestic commercial foods is too
restrictive and could limit students' access to a wide variety of fresh
and appealing produce throughout the school year. This respondent
mentioned that the proposed changes may place a significant
administrative burden on school meal programs and complicate an already
complex, challenging procurement process. A State agency agreed, adding
that the proposed changes may cause unnecessary stress for menu
planners. This State agency expressed that the proposal would affect
States located in the north that have shorter growing seasons.
Implementation Challenges: Supply Chain Issues
Some respondents discussed the current supply chain issues, stating
that the proposal would make the procurement process more difficult and
[[Page 32027]]
burdensome while decreasing variety for students. One respondent
asserted that the droughts in California, damaged grain crops in the
Midwest, and unseasonably cold weather in the south have impacted the
availability of domestic food. A respondent mentioned that the Buy
American provision states that schools should purchase domestic
products to the maximum extent ``practicable,'' but with the current
supply chain challenges, purchasing 95 percent of food domestically is
not ``practicable.'' One respondent stated that the 5 percent ceiling
is not reasonable while another questioned if the 5 percent ceiling is
possible to maintain.
Implementation Challenges: Administrative Burden
Some respondents raised concerns about tracking non-domestic costs.
A State agency asserted that maintaining documentation would be
burdensome for schools and State agencies, especially for small school
food authorities with limited staff. Another State agency agreed with
the intent of the proposal but argued that the proposed limitation of 5
percent on non-domestic food purchases, is too restrictive. This State
agency said as proposed, this provision will place significant
administrative burden on school meal operators and State agencies,
adding to an already complex, challenging Federal procurement process.
Alternative Approaches Suggested by Comments
A few trade associations appreciated USDA's efforts to strengthen
the Buy American provision for school nutrition programs and supported
the proposed 5 percent of total costs cap for non-domestic food.
However, these respondents suggested that USDA apply the 5 percent cap
to categories and/or product type,\142\ established by the USDA's
Agricultural Marketing Service, instead of total commercial food
purchases. Some of these trade associations suggested that USDA
eliminate or define the ``significant cost differential'' exception,
stating that it is a vague standard with inconsistent application and
that it creates a loophole for distributors.
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\142\ AMS used the following list as product types: Beef,
Cotton, Dairy Products, Eggs, Fish & Seafood, Flowers & Plants,
Fruits, Goat, Grain, Lamb, Nuts, Pork, Organic, Poultry, Rabbits,
Rice & Pulses, Vegetables, Specialty Products, Tobacco, Wool &
Mohair. Also available at: https://www.ams.usda.gov/grades-standards.
---------------------------------------------------------------------------
In addition to general feedback on the proposal, USDA requested
input on the following questions:
Is the proposed 5 percent of total costs per school year
ceiling on the non-domestic commercial foods a school food authority
may purchase a reasonable ceiling, or should a different percentage be
used? Would the 5 percent cap encourage those school food authorities
using exceptions to reduce the amount of non-domestic products they
purchase? USDA requests that respondents include justification and
reasons behind their response.
How feasible would tracking and documenting the total
amount of non-domestic food purchases be? Would purchasing and record
keeping processes need to be altered? Does the documentation of total
non-domestic purchases alleviate burden associated with documenting
each limited exception that is used? And any additional information
about how school food authorities would document the total amount of
non-domestic food purchases versus total annual food purchases.
About 34 respondents provided input on the first question,
regarding the 5 percent of total costs per school year ceiling on non-
domestic purchasing. Many respondents stated the proposed 5 percent cap
is too restrictive and that the data used to determine the proposed cap
is outdated. One respondent stated that there have been supply chain
disruptions, inflation, increased procurement challenges due to natural
disasters that impact school meal programs, and a pandemic. Due to
these factors, this respondent did not feel the proposed 5 percent cap
accurately represents the current procurement landscape and does not
apply lessons learned from the pandemic. This respondent also stated
that the 5 percent cap is significantly lower than current procurement
trends. In developing this new requirement, FNS used the most recent
data available which was collected in SY 2017-2018 and showed school
food authorities spent, on average, 8.5 percent of food costs on non-
domestic products.
An individual asserted that the proposed 5 percent cap would
increase burden for school nutrition professionals. State agencies
suggested that the 5 percent cap would make procurement more cumbersome
and add complexity to the oversight process. State agency respondents
also argued that mandating a 5 percent cap on non-domestic food
products would create additional burden on schools.
Some respondents provided alternatives to the 5 percent cap for
non-domestic food purchases. For example, one individual suggested a 10
percent cap. A State agency recommended an exemption list for items
like bananas, in addition to the 5 percent cap. Another State agency
urged USDA to require school food authorities to develop a system to
track non-domestic food products but noted that this would take time.
This State agency suggested that USDA create an exception list of food
products that have been determined as not produced in the U.S. in
sufficient and reasonable available commercial quantities of
satisfactory quality, such as canned oranges, canned pineapple, and
fresh bananas.
Regarding the second question, 27 respondents provided input on the
feasibility of the proposed recordkeeping process. Some respondents
affirmed that tracking non-domestic food purchases would be an
administrative burden. One individual argued that the recordkeeping
process would contribute to administrative burden because items would
need separate invoices for a successful audit and tracking purposes.
Another respondent asserted maintaining documentation would require
vendors and distributors to provide information about non-domestic food
products.
A State agency agreed, asserting that school food authorities do
not have adequate time and resources for additional paperwork.
Final Rule
This final rule changes the current limited exceptions for the Buy
American provision and codifies the two limited circumstances when
school food authorities may purchase non-domestic foods:
1. The product is listed on the Federal Acquisitions Regulations
(FAR) 25.104 Nonavailable articles list and/or is not produced or
manufactured in the U.S. in sufficient and reasonably available
quantities of a satisfactory quality; or
2. Competitive bids reveal the costs of a U.S. product are
significantly higher than the non-domestic product.
USDA notes that when a school food authority purchases a food item
found on the FAR 25.104 Nonavailable articles list, no further
documentation is required. The Nonavailable articles list is a list of
items that have been deemed not available in the U.S. and excepted from
the Buy American statute.\143\ The
[[Page 32028]]
list of items on the FAR 25.104 is non exhaustive. Food products from
the FAR Nonavailable articles list must be included in the calculation
of the non-domestic cap.
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\143\ 41 U.S.C chapter 83 is the Buy American statute that
requires public agencies to procure articles, materials, and
supplies that were mined, produced, or manufactured in the United
States, substantially all from domestic components. Available at:
https://www.acquisition.gov/far/part-25.
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This rulemaking does not define ``significantly higher'' for the
definition exception and instead USDA maintains that the definition of
``significantly higher'' is at the discretion of school food
authorities. Allowing school food authority discretion acknowledges
that school food authorities of various sizes have different resources,
and reflects the appropriate flexibility needed for purchases given the
diverse needs of school food authorities.
USDA acknowledges that some respondents requested such an exemption
list of non-domestic foods to help reduce administrative burden
associated with documenting the two exceptions to the Buy American
requirements. USDA expects that the inclusion of the FAR 25.104
Nonavailable articles will reduce administrative burden. This list is
readily available, reliable, and widely used by the other Federal
agencies. Additionally, the inclusion of this list will improve
procurement practices, support American agriculture, and contribute
toward increased Program integrity.
In response to public comments that suggested a 5 percent cap is
too restrictive under current procurement conditions and that FNS data
is not representative of current procurement practices, USDA will use a
phased approach to gradually reach the proposed 5 percent of total
costs per school year cap on non-domestic food purchases. USDA agrees
with other respondents who were in support of the 5 percent cap,
because it will help support American agriculture and industry, and
will use 5 percent as the final cap on non-domestic food costs. The cap
on non-domestic food costs is for total commercial food costs
purchased. Through a phased-in implementation, USDA intends to help
schools, State agencies, and other stakeholders adjust to the new
requirement and achieve compliance with the Buy American provision.
This phased-in approach will allow schools to gradually adjust to the
new requirement and will allow USDA to continue to collect data on use
of the Buy American exceptions.
In the proposed rule, USDA asked respondents if the proposed 5
percent cap was too restrictive or if a different cap should be used.
Through public comment a 10 percent cap was suggested as an alternative
to the 5 percent cap. Using this suggestion, the phased approach will
be as follows:
Beginning in SY 2025-2026, the non-domestic food cost cap
will be 10 percent.
Beginning in SY 2028-2029, the non-domestic food cost cap
will be 8 percent.
Beginning in SY 2031-2032, the non-domestic food cost cap
will be 5 percent.
School food authorities will be required to maintain documentation
supporting the use of an exception, except when the item is found on
the FAR 25.104 Nonavailable articles list. USDA recognizes that the
addition of the cap may pose issues for some school food authorities as
it requires additional burden to assess the amount of non-domestic
purchases. However, USDA notes that the Buy American requirement is
mandated by the statute as discussed above. It is also an important
aspect of the school meal programs to ``. . . encourage the domestic
consumption of nutritious agricultural commodities and other foods . .
.'' (42 U.S.C. 1751). In response to comments, USDA has carefully
considered how that requirement can be appropriately balanced with when
the purchase of domestic foods is not practicable for schools as well
as the associated administrative burden. There still may be individual
school food authorities that cannot meet the threshold. USDA will work
in concert with State agencies during implementation to provide needed
technical assistance and guidance, and if appropriate, an accommodation
for temporary relief from the requirement as the State agency works
with the school food authority on increasing their domestic purchases.
Compliance with the non-domestic cap will be reviewed by State
agencies in line with 7 CFR 210.18 during the school meal programs
Administrative Review process. Regulations were recently updated
through the Child Nutrition Program Integrity final rule \144\ to
specifically add the Buy American requirements in 7 CFR 210.21(d) and
220.16(d) to the General Areas of Review requirements. The process for
the General Areas during the review is first technical assistance,
followed by corrective action if there are instances of non-compliance.
The review of the Buy American requirement will follow this process
that is already familiar to State agencies and schools and is meant to
simplify administrative burden in response to comments. This process
will allow school food authorities and States to work together to
achieve compliance. As indicated in the proposed rule, the primary
mechanism for collecting information on the Buy American provision is
via the Child Nutrition Operations (CN-OPS) study. USDA notes that the
CN-OPS study showed that the vast majority of exceptions were used for
fruit and technical assistance may center around helping school food
authorities to better monitor their contracts and/or track their non-
domestic expenses; an example of corrective action is to modify future
menus to replace non-domestic items with domestic items. There may be
circumstances outside of the school food authority's control that make
compliance with the Buy American requirements challenging. These could
include nationwide supply chain issues or another pandemic, and USDA
will provide guidance and direction with respect to the Buy American
requirements.
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\144\ Child Nutrition Program Integrity (88 FR 162, August 23,
2023). Available at https://www.govinfo.gov/content/pkg/FR-2023-02-07/pdf/2023-02102.pdf.
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In addition, in response to respondent concerns about burden, USDA
notes that in accordance with a recent Government Accountability Office
audit,\145\ USDA is committed to creating a template for documenting
Buy American exceptions. USDA plans to provide guidance and technical
assistance to support school food authority implementation of the cap
and tracking of expenses.
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\145\ U.S Government Accountability Office. USDA Could Enhance
Implementation of the Buy American Provision. April 2023. Available
at: https://www.gao.gov/assets/gao-23-105884.pdf.
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Lastly in response to comments suggesting that the non-domestic
expenditure cap be based on food categories (e.g., fruit, etc.) already
established by the USDA's Agriculture Marketing Service instead of
total commercial food purchases, USDA has concluded that this would
only add administrative burden for school food authorities. Given the
feedback received in public comments, in this final rule USDA is
clarifying that the cap will apply to total commercial food costs.
Accordingly, this final rule amends 7 CFR 210.21(d)(5) and
220.16(d)(5) to codify the two limited circumstances when school food
authorities may purchase non-domestic foods and to gradually phase in a
cap on when school food authorities may procure non-domestic food.
Additionally, this final rule amends 7 CFR 210.21(d)(8) and
220.16(d)(8) to codify an
[[Page 32029]]
accommodation for schools unable to meet the phased-in cap.
Section 18B: Exception Documentation and Reporting Requirements
Current Requirement
Currently, the primary mechanism for collecting information on the
Buy American provision is via the CN-OPS study. The CN-OPS study is a
multi-year study that provides USDA with current information on various
aspects of school meals programs operations. USDA uses results from
this study to help inform program management practices and policy
development.
School food authorities document each use of an exception to the
Buy American requirements.\146\ However, there is no requirement for
school food authorities to request a waiver from the State agency or
USDA in order to purchase a non-domestic food product.
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\146\ U.S. Department of Agriculture, Compliance with and
Enforcement of the Buy American Provision in the National School
Lunch Program, June 30, 2017. Available at: https://www.fns.usda.gov/nslp/compliance-enforcement-buy-american.
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Proposed Rule
USDA proposed to require school food authorities to maintain
documentation supporting use of one of the two limited exceptions and
documentation to demonstrate that no more than 5 percent of total
annual commercial food costs per school year are for non-domestic
foods.
Public Comments
USDA received 24 comments on the proposed Buy American exception
documentation and reporting requirements. Of these, one supported the
proposal, 21 were opposed, and two were mixed. State agencies, trade
agencies, vendors, school food authorities, and individuals submitted
comments on the proposal.
The supportive comment came from a trade agency. This respondent
stated that they agreed with the proposal and that the proposal would
make food distributors more aware of the Buy American requirements.
Many respondents stated that requiring school food authorities to
maintain documentation showing no more than 5 percent of their total
annual commercial food costs were spent on non-domestic foods will add
to administrative burden and stated that school food authorities are
already overwhelmed with documentation requirements. Another respondent
asserted that the documentation requirement would require time-
consuming activities such as reviewing all invoices to determine the
total costs and non-domestic costs and calculating the percentage on a
regular basis, on top of all the other program requirements that must
be monitored.
Respondents stated that they did not see any issues with the
current Buy American requirements and suggested USDA leave the
provision as is. One State agency claimed that the Buy American
provision has not been excessively abused and that adding an additional
layer of recordkeeping to an already overwhelmed staff would create
unnecessary burden. One respondent mentioned that their vendor is
already documenting their use of the Buy American exception, and it
only would add another layer of tracking for them. Another respondent
recommended that USDA leave the provision as is, asserting that schools
understand the importance of limiting non-domestic purchases to special
circumstances.
Some respondents provided alternatives or asked for clarification
about the proposed documentation and tracking requirements. A State
agency noted that while the provision is not difficult to comprehend,
if USDA has specific expectations for how tracking and maintenance of
documentation should occur, those expectations should be established in
the rulemaking. This respondent also suggested that USDA should include
what fiscal action, if any, would result if those expectations are not
met. Another respondent suggested that schools could meet the
documentation and tracking requirements, but it would be difficult.
USDA requested public input on the following questions related to
the proposals for exception documentation and reporting requirements of
the Buy American requirements:
Is the proposal to require school food authorities to
maintain documentation showing that no more than 5 percent of their
total commercial food costs per school year were for non-domestic foods
feasible and is the regulatory language clear enough for school food
authorities and State agencies to implement and follow?
For oversight purposes, USDA is considering requiring
school food authorities to maintain an attestation statement to attest
that any non-domestic foods purchased under the 5 percent cap met one
of the two limited exceptions. Would this approach assist school food
authorities with the burden associated with documentation requirements?
Does it help ensure that any non-domestic food purchase under the 5
percent cap was only a result of utilizing one of the current limited
exceptions that USDA proposes to codify through this rulemaking?
About five respondents provided input on the first question about
the feasibility of the proposal for documentation showing 5 percent cap
for non-domestic food purchases. One respondent stated that the
proposed rule would increase administrative burden by imposing
additional tracking requirements for school food authorities. This
respondent suggested that the documentation requirements would
especially impact large school districts.
Regarding the second question, nine respondents, including State
agencies, trade associations, and individuals provided input on the
possible approach of maintaining an attestation statement that non-
domestic food purchases were less than the 5 percent cap. Respondents
provided mixed feedback on this question. A State agency and a few
individuals expressed that the attestation would help with the
documentation burden. However, some respondents were confused on who
the attestation statement is intended for, and whether school food
authorities or distributors would attest that any non-domestic foods
purchased under the 5 percent cap met one of the two limited
exceptions.
A State agency suggested that the use of an attestation statement,
without backup documentation, is not an effective method of ensuring
compliance. This State agency argued that the attestation statement
would create additional paperwork that would not actually impact school
food authorities' purchasing practices. Lastly, one respondent stated
the attestation seems unnecessary.
Final Rule
This final rule requires school food authorities to maintain
documentation to demonstrate use of one of the two limited exceptions
and institutes a phased-in cap on non-domestic food purchases. In
response to public comments, USDA is exempting products found on the
FAR 25.104 Nonavailable articles list from the documentation
requirement. School food authorities may use this list to deem a
product as not domestically available without further documentation.
Food products that are found on the FAR Nonavailable articles list will
be included in the non-domestic expenditure ceiling calculation. While
this was not included in the proposed rule, USDA requested public
comment on the feasibility of a non-domestic cap, tracking of
purchases, and documentation requirements, and gave notice to the
[[Page 32030]]
public that changes may be incorporated into a final rule based on
public input. Public comments requested that USDA develop a non-
domestic product exception list. Allowing the exception of products on
the FAR 25.104 Nonavailable articles list from the Buy American
documentation requirement addresses these public comments and reduces
administrative burden for schools.
In addition, as stated above, in response to respondent concerns
about burden, USDA notes that in accordance with a recent Government
Accountability Office audit, USDA Could Enhance Implementation of the
Buy American Provision (April 2023),\147\ USDA has committed to
creating a template for documenting Buy American exceptions. USDA will
also explore any technical assistance resources that will better help
school food authorities document non-domestic food purchases.
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\147\ U.S Government Accountability Office. USDA Could Enhance
Implementation of the Buy American Provision. April 2023. Available
at: https://www.gao.gov/assets/gao-23-105884.pdf.
---------------------------------------------------------------------------
Accordingly, this final rule amends 7 CFR 210.21(d)(5)(iii) and
220.16(d)(5)(iii) to require school food authorities to maintain
documentation to demonstrate use of one of the two limited exceptions
to the Buy American provision.
Section 18C: Procurement Procedures
Current Requirement
School lunch and breakfast program regulations do not currently
require school food authorities to include any Buy American provisions
in required documented procurement procedures,\148\ solicitations, or
contracts. However, USDA guidance has strongly advised school food
authorities to include safeguards in solicitation and contract language
to ensure Buy American requirements are followed.\149\ Additionally,
school food authorities are required to monitor solicitation and
contract language to ensure that contractors perform in accordance with
the terms, conditions, and specifications of their contracts or
purchase orders (2 CFR 200.318(b)).\150\
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\148\ School food authorities are required to have documented
procurement procedures, as per 2 CFR 200.318(a).
\149\ U.S. Department of Agriculture, Compliance with and
Enforcement of the Buy American Provision in the National School
Lunch Program, June 30, 2017. Available at: https://www.fns.usda.gov/nslp/compliance-enforcement-buy-american.
\150\ ``Monitoring is also accomplished by reviewing products
and delivery invoices or receipts to ensure the domestic food that
was solicited and awarded is the food that is received. SFAs also
need to conduct a periodic review of storage facilities, freezers,
refrigerators, dry storage, and warehouses to ensure the products
received are the ones solicited, and awarded, and comply with the
Buy American provision.'' U.S. Department of Agriculture, Compliance
with and Enforcement of the Buy American Provision in the National
School Lunch Program, June 30, 2017. Available at: https://www.fns.usda.gov/nslp/compliance-enforcement-buy-american.
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Proposed Rule
USDA proposed to require school food authorities to include the Buy
American provision in documented procurement procedures, solicitations,
and contracts for foods and food products procured using informal and
formal procurement methods, and in awarded contracts.
Public Comments
USDA received 30 comments on the proposals to include Buy American
requirements in procurement procedures. Of these, 14 supported the
proposal and 16 were mixed. State agencies, school districts, advocacy
groups, trade associations, dietitians, and individuals submitted
comments on the proposal.
Many respondents supported the proposal requiring school food
authorities to include the Buy American provision in documented
procurement procedures, solicitations, and contracts. Some respondents
affirmed that they have these proposed requirements in their
procurement procedures.
Other respondents provided mixed feedback. While these respondents
agreed with the proposed provision, some suggested expanding it. For
example, one respondent suggested that solicitations and contracts
require distributors to attest to the domestic or non-domestic origin
of delivered products. A professional organization stated that all
Federal nutrition assistance programs should adopt the Buy American
provision. Another respondent suggested that USDA bar distributors who
substitute non-domestic products for domestic products without
justification.
Final Rule
USDA agrees with respondents that Buy American provisions should be
included in all procurement procedures. This final rule requires school
food authorities to include the Buy American requirements in documented
procurement procedures, solicitations, and contracts for foods and food
products procured for school breakfast and school lunch programs using
informal and formal procurement methods, and in awarded contracts.
State agencies are required to verify the inclusion of this
language when conducting Procurement oversight and Administrative
Reviews. USDA expects that this requirement will ensure vendors are
aware of expectations at all stages of the procurement process, in
addition to providing contractual protection for school food
authorities if vendors fail to meet Buy American obligations.
Accordingly, this final rule amends 7 CFR 210.21(d)(3) and
220.16(d)(3) to require that Buy American provisions be included in all
procurement procedures.
Section 18D: Definition of ``Substantially''
Current Requirement
The National School Lunch Act (NSLA, 42 U.S.C. 1760(n)(1)(B))
defines a domestic product as ``[a] food product that is processed in
the United States substantially using agricultural commodities that are
produced in the United States.'' The current regulatory language at 7
CFR 210.21(d)(1) and 220.16(d)(1) is identical to the statutory
language. To satisfy the statutory and regulatory requirements, food
products purchased for child nutrition programs must be processed in
the United States.\151\ However, USDA understands that the meaning of
the term ``substantially'' is not clearly defined.
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\151\ See also section 4207(b) of the Agriculture Improvement
Act of 2018, Public Law 115-334 (42 U.S.C. 1760).
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Congressional report language accompanying the original legislation
noted that ``substantially means over 51 percent from American
products.'' \152\ Therefore, USDA has stated in guidance that
``substantially'' means over 51 percent of the final processed product
(by weight or volume) consists of agriculture commodities that were
grown domestically, as determined by the school food authority.\153\
The guidance also states that products ``from Guam, American Samoa,
Virgin Islands, Puerto Rico, and the Northern Mariana Islands are
considered domestic products under this provision as these products are
from the territories of the U.S.''
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\152\ U.S. House of Representatives. Child Nutrition and WIC
Reauthorization Amendments of 1998--House Report 105-633. July 20,
1998. Available at: https://www.govinfo.gov/content/pkg/CRPT-105hrpt633/html/CRPT-105hrpt633.htm.
\153\ U.S. Department of Agriculture, Compliance with and
Enforcement of the Buy American Provision in the National School
Lunch Program, June 30, 2017. Available at: https://www.fns.usda.gov/nslp/compliance-enforcement-buy-american.
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Proposed Rule
USDA proposed to codify a definition of the statutory phrase
``substantially using agriculture commodities.'' The
[[Page 32031]]
definition, which USDA would codify at 7 CFR 210.21(d)(1)(ii)(A) and
220.16(d)(1)(ii)(A), was proposed as follows: ``Substantially using
agriculture commodities that are produced in the United States'' means
over 51 percent of a food product must consist of agricultural
commodities that were grown domestically.
Public Comments
USDA received 11 comments on the proposal to codify the definition
of ``substantially using agriculture commodities.'' Of these, six
supported the proposal, one was opposed, and four were mixed. State
agencies, advocacy groups, professional organizations, dietitians, and
individuals submitted comments on the proposal.
Most respondents supported the clarification. Some respondents
stated that the proposed clarification made sense to them, and that the
language provided was welcome. One State agency already requires school
food authorities to use this definition based on its use in USDA
guidance.
One State agency opposed the proposal and stated that the proposed
definition does not meet the intent of other Federal agencies' Buy
American requirements as it allows for up to 49 percent of a food
product to be non-domestic.
Mixed comments were generally supportive but wanted USDA to go
further than the proposed 51 percent threshold. A few respondents
wanted the threshold to be raised higher, potentially up to 80 or 90
percent instead of 51 percent. One respondent wanted USDA to clarify
that domestic water does not count toward the 51 percent. Another
respondent requested that USDA consider that the term ``substantial''
is relative, open to interpretation, and should be further clarified in
order to achieve desired results.
USDA requested public input on the following question related to
codifying the definition of substantially:
Does the proposed definition of ``substantially using
agriculture commodities that are produced in the United States'' meet
the intent of the Buy American requirements? If not, what other
suggestions do stakeholders have for the definition?
Approximately three respondents provided input on this question
regarding the intent of the Buy American requirements. Respondents
generally agreed that the proposed definition is consistent with the
intent of Buy American requirements.
Final Rule
This final rule codifies the proposed definition of
``substantially'' in the Buy American provision at 7 CFR
210.21(d)(1)(ii)(A) and 220.16(d)(1)(ii)(A). Consistent with the
proposed rule, this definition reads as follows: ``Substantially using
agriculture commodities that are produced in the United States'' means
over 51 percent of a food product must consist of agricultural
commodities that were grown domestically.
Although USDA acknowledges that some respondents recommended a
threshold higher than 51 percent, this definition reflects the
Congressional report language and USDA guidance as mentioned above.
USDA agrees with supportive respondents and codifies the proposed
definition for ``substantially'' in this final rule.
Accordingly, this final rule amends 7 CFR 210.21(d)(1)(ii) and
220.16(d)(1)(ii) to codify the definition of ``substantially'' in the
Buy American regulations.
Section 18E: Clarification of Requirements for Harvested Farmed and
Wild Caught Fish
Current Requirement
Current regulations do not include language specific to the
applicability of the Buy American requirements to fish or fish
products. However, in 2019, section 4207 of the Agriculture Improvement
Act of 2018 (Pub. L. 115-334) clarified the Buy American provision
applies to fish harvested ``within the Exclusive Economic Zone of the
United States, as described in Presidential Proclamation 5030 (48 FR
10605; March 10, 1983), or . . . by a United States flagged vessel.''
USDA published Buy American and the Agricultural Improvement Act of
2018 \154\ and explained how to treat harvested fish under the Buy
American requirement. The guidance stated that, ``[i]n order to be
compliant:
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\154\ U.S. Department of Agriculture. Buy American and the
Agriculture Improvement Act of 2018. August 15, 2019. Available at:
https://www.fns.usda.gov/cn/buy-american-and-agriculture-improvement-act.
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Farmed fish must be harvested within the United States or
any territory or possession of the United States.
Wild caught fish must be harvested within the Exclusive
Economic Zone of the United States or by a United States flagged
vessel.''
Prior to the publication of the 2019 guidance, the Buy American
provision applied to fish as it would to any other food.
Proposed Rule
USDA proposed to add language to the regulations to codify how Buy
American applies to fish and fish products in the school lunch and
breakfast programs. The proposed change would be consistent with
current statutory requirements and existing USDA policy guidance. USDA
expects that codifying these existing requirements in regulation will
improve awareness of, and compliance with, program requirements.
Public Comments
USDA received 11 comments on the proposal to codify how Buy
American applies to fish and fish products in the school lunch and
breakfast programs. Of these, four supported the proposed standards and
seven were mixed. State agencies, professional associations, industry
respondents, and dietitians submitted comments on the proposal.
Proponents generally stated the clarification is acceptable to add
to the regulations. Other respondents appreciated the clarification on
what criteria must be met for fish and fish products to meet the Buy
American requirements but were concerned with the challenges of
identifying whether fish were harvested within the Exclusive Economic
Zone and/or whether the vessel used to catch the fish was a ``United
States flagged vessel.''
Final Rule
USDA agrees with respondents that making the proposed change will
improve the understanding of program requirements. This final rule
codifies language in regulations regarding how the Buy American
requirements apply to fish and fish products offered in the school
lunch and breakfast programs. In order to be compliant with Buy
American requirements, under this final rule:
Farmed fish must be harvested within the United States or
any territory or possession of the United States.
Wild caught fish must be harvested within the Exclusive
Economic Zone of the United States or by a United States flagged
vessel.
This change is consistent with current statutory requirements and
existing USDA policy guidance.
Accordingly, this final rule amends 7 CFR 210.21(d)(6) and
220.16(d)(6) to codify language regarding how the Buy American
requirements apply to fish and fish products offered in the school
lunch and breakfast programs.
[[Page 32032]]
Section 19: Geographic Preference
Current Requirement
Section 4302 of the Food, Conservation, and Energy Act of 2008
(Pub. L. 110-246) \155\ amended the National School Lunch Act to direct
the Secretary of Agriculture to encourage institutions operating child
nutrition programs to purchase unprocessed locally grown and locally
raised agricultural products. Effective October 1, 2008, institutions
receiving funds through the child nutrition programs could apply an
optional geographic preference for the procurement of unprocessed
locally grown or locally raised agricultural products. This provision
applies to institutions operating any of the child nutrition programs,
including the NSLP, SMP, SBP, Fresh Fruit and Vegetable Program, SFSP,
and CACFP, as well as to purchases made for these programs by the USDA
Department of Defense Fresh Fruit and Vegetable Program. The provision
also applies to State agencies making purchases on behalf of any of the
aforementioned child nutrition program operators.
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\155\ The Food, Conservation, and Energy Act of 2008 (Pub. L.
110-246). June 18, 2008. Available at: https://www.congress.gov/110/plaws/publ246/PLAW-110publ246.pdf.
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The Geographic Preference Option for the Procurement of Unprocessed
Agricultural Products in Child Nutrition Programs final rule (75 FR
20316, April 4, 2011) \156\ went into effect on May 23, 2011. This
final rule incorporated the geographic preference option in program
regulations and defined the term ``unprocessed locally grown or locally
raised agricultural products,'' which does allow for some minimal
processing, food handling, and preservation techniques as defined, to
facilitate implementation by institutions operating the child nutrition
programs. Language included in that final rule indicates that ``local''
cannot be used as a procurement specification (a written description of
the product or service that the vendor must meet to be considered
responsive and responsible).
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\156\ Geographic Preference Option for the Procurement of
Unprocessed Agricultural Products in Child Nutrition Programs (75 FR
20316, April 4, 2011). Available at: https://www.federalregister.gov/documents/2011/04/22/2011-9843/geographic-preference-option-for-the-procurement-of-unprocessed-agricultural-products-in-child.
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Currently, Federal regulations do not prescribe the way that
geographic preference should be applied, or how much preference can be
given to local products. Federal regulations also do not define
``local'' for the purpose of procuring local foods for use in child
nutrition programs. However, producers located in a specified
geographic area can be provided additional points or credit calculated
during a program operator's evaluation of proposals or bids received in
response to a solicitation.\157\
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\157\ U.S. Department of Agriculture. Procurement Geographic
Preference Q&As. February 1, 2011. Available at: https://www.fns.usda.gov/cn/procurement-geographic-preference-qas.
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Proposed Rule
USDA proposed to expand the geographic preference option by
allowing locally grown, raised, or caught as procurement specifications
for unprocessed or minimally processed food items in the child
nutrition programs. This proposal intended to increase the procurement
of local foods by child nutrition program operators and ease
procurement challenges for operators interested in sourcing food from
local producers.
Public Comments
USDA received 389 comments referencing the geographic preference
proposal, including 176 unique comments. Of the total comments, 351
supported the proposal, including 138 unique comments, one was opposed,
and 37 were mixed. State agencies, school nutrition professionals,
advocacy groups, industry respondents, dietitians, elected officials,
and individuals submitted comments. Many respondents mentioned that the
geographic preference proposal would support local producers. Comments
from advocacy groups, State agencies, and an academic institution
indicated that the proposal would allow local producers to be more
competitive and encourage local and smaller-scale producers to submit
bids to sell local foods to child nutrition program operators. A State
agency noted that the proposal would help larger school districts and
cooperatives of smaller school districts coordinate with small-scale
producers to procure locally without relying on the micro-purchase
procurement method. A couple of advocacy groups and an individual
mentioned that the proposal would be economically beneficial for local
producers and communities. Similarly, a professional association
suggested the proposal would stimulate local economies and keep money
in school communities. Advocacy groups, State agencies, a professional
organization, and a dietitian expressed that the proposal would make it
easier for child nutrition program operators to procure local products
for their meal programs and reduce administrative barriers.
Some respondents shared other potential benefits of the proposal,
such as mitigating supply chain disruptions and fostering healthier
communities. A food manufacturer and an advocacy group stated that they
received positive feedback from child nutrition operators about the
proposal. A few advocacy groups also noted that schools that had pre-
existing relationships with local suppliers reported fewer supply chain
disruptions and more reliable product availability during the COVID-19
pandemic. One advocacy group and one individual suggested that the
proposal would support more nutritious school meals and foster
connections between students, local producers, and communities. An
individual stated that local food procurement can also support schools
offering foods that better reflect students' food cultures and
heritage. A group of Federal elected officials stated that the proposal
would improve domestic sourcing, relieve procurement challenges, and
allow more local foods to be incorporated into school meals.
Some respondents provided mixed feedback on the proposal or
provided suggestions. One State agency noted that the proposal would
make it easier for program operators to procure local foods but
recommended that USDA provide guidance on using a definition of
``local'' that does not reduce the number of potential vendors that can
respond to a solicitation to a non-competitive level. This respondent
also recommended guidance to support program operators in conducting
market research and requests for information prior to issuing
solicitations. A State agency affirmed this guidance would help program
operators avoid delays in awarding contracts to qualified local vendors
and prevent program operators from having to reissue solicitations.
Another State agency requested that USDA define the term ``local'' in a
way that clarifies ``local'' should be based on the source of the
agricultural product being procured rather than the bidder's location.
Multiple advocacy groups and an individual recommended that the
proposed geographic preference language be updated to allow for, or
encourage, other procurement specifications to support varied
procurement values such as organic certification, independent animal
welfare certifications, products produced by historically underserved
producers, and more.
Several respondents supported the proposal but raised concerns
about the potential increased costs of local foods. An individual noted
that the cost of procuring local foods could be a barrier for smaller
schools and school districts. Another respondent warned that a lack of
locally produced food in their area,
[[Page 32033]]
and food safety concerns, would hinder local purchasing. An advocacy
group stated that vendors should be required to substantiate that local
production requirements are met and recommended that cost incentives be
provided to support procurement of local food products. A union, school
food service staff member, and an advocacy group agreed that additional
funding is needed to make local procurement viable for many program
operators, especially in certain States and territories. A State agency
and an advocacy group expressed concerns about cost as a barrier to
local procurement among CACFP operators.
USDA requested public input on the following questions related to
the geographic preference expansion proposal:
Do respondents agree that this approach would ease
procurement challenges for child nutrition program operators interested
in sourcing food from local producers?
Do respondents agree that this approach would encourage
smaller-scale producers to submit bids to sell local foods to child
nutrition programs?
Several respondents provided input on the first question, regarding
whether the proposed approach would ease procurement challenges. Many
respondents indicated that expanding school food authorities' options
for geographic preference in procurement would streamline local
purchasing for child nutrition program operators. Advocacy groups, a
trade association, and a State agency noted that the proposal would
remove uncertainties and facilitate clear, predictable procurement
processes. An academic institution stated that not all program
operators are willing and able to apply geographic preference in its
current form due to its complexity. This respondent noted that the
proposal would ease procurement challenges and enable program operators
to spend less time on the administrative aspects of the procurement
process and more time incorporating local foods into program menus. A
professional organization and dietitian expressed that the proposal
would help program operators that operate smaller-scale programs more
easily purchase local products.
In response to the second question, many respondents agreed that
the proposed approach would encourage smaller-scale producers to submit
bids to sell foods to child nutrition programs. Respondents emphasized
that expanding geographic preference options would make local and
small-scale producers more competitive in the bidding process. A couple
of advocacy groups and a State agency asserted that the proposal would
simplify bid writing. One advocacy group suggested that local and
smaller food producers have a hard time competing against larger
producers and distributors, and multiple individuals and advocacy
groups emphasized that the proposal could provide smaller local
producers a ``competitive edge''. An academic institution stated that
the proposal would encourage local producers to submit bids and provide
a steady market for smaller-scale producers.
Final Rule
This final rule codifies, without changes, USDA's proposal to
expand the geographic preference option by allowing child nutrition
program operators to use ``locally grown'', ``locally raised'', or
``locally caught'' as procurement specifications (a written description
of the product or service that the vendor must meet to be considered
responsive and responsible) for unprocessed or minimally processed food
items in the child nutrition programs. The definition of unprocessed,
and the minimal food handling and processing techniques allowed within
that definition, remains unchanged in this final rule (7 CFR
210.21(g)(2), 220.16(f)(2), 225.17(e)(2), and 226.22(c)(1). USDA agrees
with comments that suggested this provision will support increased
procurement of local foods by child nutrition program operators. This
change may encourage smaller-scale producers to submit bids to sell
local foods to child nutrition programs and may ease procurement
challenges for program operators interested in sourcing food locally.
USDA will provide guidance and resources on implementing this final
standard, including but not limited to: updating the geographic
preference section of the Procuring Local Foods for the Child Nutrition
Programs guide,\158\ the Geographic Preference Fact Sheet,\159\ and
Geographic Preference Q&As Part I \160\ and Part II.\161\ These
resources and guidance respond to comments citing the need for program
operators to adopt a definition of ``local'' that will support fair and
open competition in the procurement and bidding process. Updates to
these resources will also help program operators choose appropriate
procurement methods; conduct market research, requests for information,
and producer outreach as needed; and retain appropriate documentation
while implementing this final standard. USDA will continue to allow
State agencies and program operators to adopt their own definition of
``local'' and will not prescribe a Federal definition for the purpose
of procuring local foods for child nutrition programs. Program
operators are encouraged to adopt definitions of ``local'' that best
suit their distinct needs and goals, for example based on their
community's unique geography and climate, the availability of local
producers and manufacturers, and program participants' interest in
local products.
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\158\ U.S. Department of Agriculture. Procuring Local Foods for
the Child Nutrition Programs. Available at: https://fns-prod.azureedge.us/sites/default/files/resource-files/June22F2SProcurementGuide508.pdf.
\159\ U.S. Department of Agriculture. Geographic Preference Fact
Sheet. Available at: https://www.fns.usda.gov/f2s/geographic-preference.
\160\ U.S. Department of Agriculture. Procurement Geographic
Preference Q&As. February 1, 2011. Available at: https://www.fns.usda.gov/cn/procurement-geographic-preference-qas.
\161\ U.S. Department of Agriculture. Procurement Geographic
Preference Q&As: Part II. October 9, 2012. Available at: https://www.fns.usda.gov/cn/procurement-geographic-preference-qas-%E2%80%93-
part-ii.
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In response to comments requesting that USDA allow procurement
values beyond local, such as certified organic or certified by an
independent animal welfare program as procurement specifications, USDA
will clarify in updated guidance and resources that these and other
similar production standards are already allowable as specifications in
program operators' procurement solicitations as long as they do not
overly restrict competition. USDA will also continue to provide
training, technical assistance, and, under certain circumstances as
available, financial support, to program operators to help them
mitigate costs and other barriers to local food procurement. Since
January 2021, USDA has provided:
$200 million for States to purchase local foods for
schools through the Local Food for Schools Cooperative Agreement
Program;
Nearly $3.8 billion in Supply Chain Assistance funds for
schools to purchase domestic foods, including $1.3 billion for SY 2023-
2024;
$140 million for Equipment Assistance Grants to help
schools buy kitchen equipment, which can help them process local foods;
and
$94 million to provide children with nutritious, local
foods and agricultural education through expanded Farm to School
engagement.\162\
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\162\ U.S. Department of Agriculture. USDA Support for School
Meals. Available at: https://www.fns.usda.gov/cn/support-schools.
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Accordingly, this final rule amends 7 CFR 210.21(g)(1), 215.14a(e),
[[Page 32034]]
220.16(f)(1), 225.17(e)(1), and 226.22(c)(1), to codify the expansion
of the geographic preference option to allow ``locally grown'',
``locally raised'', or ``locally caught'' as procurement
specifications. Program operators may begin implementing the expanded
geographic preference option in their procurement processes immediately
following this rule's effective date. Program operators remain
responsible for complying with all Federal, State, and local
procurement regulations. NSLP and SBP program operators' compliance
with Federal procurement regulations will continue to be monitored
through State agency oversight of procurement.
Section 20: Miscellaneous Changes
In addition to the major provisions of this rulemaking, USDA is
finalizing a variety of miscellaneous changes to the child nutrition
program regulations. The miscellaneous changes update terminology used
in the regulations, remove outdated information, and correct cross
references. However, as detailed below, this rule does not finalize the
proposed terminology change for the meats/meat alternates component.
Additionally, USDA is finalizing a severability clause in this
rulemaking, as detailed below. In the event any changes made by this
rulemaking are to be held invalid or unenforceable, USDA intends that
the other changes will remain. USDA has further specified what
requirement would replace the invalidated change.
Terminology Change: Protein Sources Component [Not Finalized]
Current child nutrition program regulations use the term ``meats/
meat alternates'' for the meal component that includes beans and peas,
whole eggs, tofu, tempeh, meat, poultry, fish, cheese, yogurt, soy
yogurt, peanut butter and other nut or seed butters, and nuts and
seeds. USDA proposed to change the name of the meats/meat alternates
meal component in the NSLP, SBP, and CACFP regulations to ``protein
sources.'' Under this proposal, all references in 7 CFR parts 210, 220,
and 226 to ``meats/meat alternates'' would change to ``protein
sources.'' The foods within this meal component would remain unchanged.
Public Comments
USDA received 240 comments on this proposed terminology change,
including 131 unique comments. Of these, 57 supported the proposal, all
of which were unique comments, 120 were opposed, including 31 unique
comments, and 63 were mixed, including 43 unique comments. Comments
were submitted by State agencies, school nutrition professionals,
advocacy groups, industry respondents, dietitians, and CACFP sponsoring
organizations.
A dietitian argued that the proposed meal component name of
``protein sources'' sounded ``much more appealing'' than meats/meat
alternates. Another respondent suggested protein sources ``makes more
sense'' as a meal component name compared to meats/meat alternates. An
advocacy group supported the change, maintaining that the term ``meats/
meat alternates'' creates a negative perception of plant-based foods
and is confusing to child nutrition operators, families, and students.
A school district agreed, suggesting the proposed terminology change
would help in communications with families. Similarly, an advocacy
group suggested that ``terminology has changed'' and renaming the
component would improve understanding for school nutrition
professionals and families. A school district noted that children
struggle to understand the current term and maintained that ``protein''
is a universally understood term that better describes the component. A
State agency supported the change, but requested USDA consider the
burden some States may face to revise and reprint resources due to the
change.
Opponents argued that the change would require costly updates to
materials, would require significant retraining, and would make it
difficult to determine which foods are creditable under the protein
source meal component. For example, an industry respondent stated that
renaming the meats/meat alternates component to the protein sources
component is akin to renaming the milk component to the calcium
component, describing the proposal as inaccurate and misleading. An
advocacy group agreed, citing concerns about potential confusion with
protein-labeled food items, or specific products such as protein bars
and protein shakes, which do not credit toward the meats/meat
alternates component (and would not credit toward the protein sources
component, if the change is finalized). This respondent argued that
implementing this change would require significant technical
assistance. Further, the same advocacy group maintained that the
proposed terminology change would create financial burden for
retraining providers and developing new documents and materials. A
State agency provided similar feedback, asserting that the proposed
terminology change would require a ``tremendous'' number of staff hours
to update documents. Another State agency also cited concerns about the
burden of implementing this change and noted that they have not
encountered problems with the current terminology.
Conversely, one school district acknowledged that updating and
reprinting materials may be costly, but still supported the change.
This respondent saw renaming the component as an opportunity to
``update and refresh'' the program with terms participants would
understand. An industry respondent suggested that phasing in the change
over several years would allow industry to plan label inventories and
resource allocation to minimize the anticipated impact of making the
terminology change.
A few respondents offered mixed feedback or alternative
suggestions. One State agency recommended keeping the meal component
names ``simple'' and suggested aligning with MyPlate, which includes
the following food groups: fruits, vegetables, grains, protein foods,
and dairy. However, this respondent noted that, due to the requirement
to offer milk with school meals, the MyPlate dairy group would need to
be replaced with a milk group. An industry respondent suggested that
USDA name the meal component ``proteins'' instead of ``protein
sources'' for brevity. An advocacy group recommended that USDA allow
quinoa to credit toward the protein sources component. Additionally,
this respondent recommended that tofu and soy products and beans, peas,
and lentils be allowed to credit as protein sources even if they are
not visually recognizable. An advocacy group encouraged USDA to provide
``a national list of definitive protein sources'' for child nutrition
program operators. A different advocacy group stated that making this
change in some child nutrition programs, but not SFSP, would create
confusion for operators that participate in multiple programs. A State
agency, school district, and another respondent strongly encouraged
USDA to prioritize making similar changes in SFSP to address
inconsistencies and align terminology across all child nutrition
programs.
Final Rule
In response to public comments, USDA is not finalizing the proposal
to change the name of the meats/meat alternates meal component in the
NSLP, SBP, and CACFP regulations to ``protein sources.'' USDA
appreciates concerns that respondents raised with the proposed
terminology change, including the challenge of updating State and
[[Page 32035]]
local materials to reflect the change. Although these changes could
have been accomplished over time, and State and local operators would
not have been penalized for using the prior terminology, USDA will not
finalize this proposed change given respondent concerns. In addition,
many respondents from the CACFP community recommended that USDA assess
the potential impacts of terminology changes on all child nutrition
program operators prior to making them. USDA will consider this
suggestion when considering potential terminology changes in the
future.
USDA also appreciates comments regarding potential confusion about
foods that would credit toward the ``protein sources'' component.
Although the proposed terminology change would not have changed current
guidelines regarding foods that may credit toward the existing meats/
meat alternates component,163 164 USDA appreciates that use
of the word ``source'' in the proposed component name could have
created confusion for operators. The child nutrition programs use a
food-based menu planning approach, which helps to ensure that children
are offered (and learn to build) meals that include key food groups
recommended by the Dietary Guidelines. In the near term, based on input
from respondents, USDA has determined the meats/meat alternates
component name better reflects the food-based menu planning approach.
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\163\ For information on crediting the meat/meat alternate
component, see the Food Buying Guide for Child Nutrition Programs,
available at: https://www.fns.usda.gov/tn/food-buying-guide-for-child-nutrition-programs.
\164\ Exceptions include certain smoothie ingredients and pasta
products made from vegetable flours. See Question 104: U.S.
Department of Agriculture, Meal Requirements Under the NSLP & SBP:
Q&A for Program Operators Updated to Support the Transitional
Standards Effective July 1, 2022, March 2, 2022. Available at:
https://www.fns.usda.gov/cn/sp052022-questions-answers-program-operators.
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USDA appreciates respondent suggestions for other potential
component names, such as ``proteins'' and ``protein foods.'' USDA also
appreciates respondent feedback on other changes USDA could make to the
meal components, including which meal component certain foods credit
toward. However, for the reasons detailed above, this final rule
maintains the meats/meat alternates component name and does not make
any changes to food crediting guidelines for this component.
Terminology Change: Beans, Peas, and Lentils
The Dietary Guidelines, 2020-2025, changed the terminology for the
``legumes (beans and peas)'' vegetable subgroup to ``beans, peas, and
lentils.'' \165\ The foods within this vegetable subgroup did not
change. USDA proposed to change the name of the ``legumes (beans and
peas)'' vegetable subgroup in the school meal pattern regulations to
align with the Dietary Guidelines. Under this proposal, all references
in 7 CFR parts 210 and 220 to ``legumes (beans and peas)'' would change
to ``beans, peas, and lentils'' for consistency with the terminology
used in the Dietary Guidelines. The foods within this vegetable
subgroup and the related requirements would remain unchanged. USDA also
proposed to change references to ``beans and peas (legumes)'' in 7 CFR
part 226 to ``beans, peas, and lentils''.
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\165\ See ``About Beans, Peas, and Lentils,'' page 31. U.S.
Department of Agriculture and U.S. Department of Health and Human
Services. 2020-2025 Dietary Guidelines for Americans. 9th Edition.
December 2020. Available at: https://www.dietaryguidelines.gov/.
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Public Comments
USDA received 134 comments on this proposed terminology change,
including 45 unique comments. Comments were submitted by State
agencies, advocacy groups, and individuals. An advocacy group stated
that the proposed change ``brings the school nutrition language into
alignment with the language used in the Dietary Guidelines.'' A State
agency agreed, suggesting that this change would improve ``consistency
with terminology used in the Dietary Guidelines.'' A few other
respondents, including advocacy groups and individuals, expressed
support for the terminology change.
While fewer respondents opposed the ``beans, peas, and lentils''
terminology change compared to the ``protein sources'' terminology
change, those who did gave similar reasons for their opposition. For
example, a State agency opposed the change, suggesting that terminology
changes would require all materials that use the terms to be redone and
redistributed which would be costly and time consuming. A few
respondents, including a State agency, did not oppose the change, but
suggested adding ``dry'' in ``beans, peas, and lentils'' to avoid
confusing vegetables in this subgroup with fresh green beans and peas,
which count toward the ``other'' vegetable subgroup and the starchy
vegetable subgroup, respectively.
Final Rule
USDA is finalizing the proposal to change the name of the ``legumes
(beans and peas)'' vegetable subgroup in the school meal pattern
regulations and to change references to ``beans and peas (legumes)'' in
CACFP regulations. This final rule will instead refer to ``beans, peas,
and lentils,'' consistent with the terminology used in the Dietary
Guidelines. Additionally, USDA is extending this change to SFSP based
on public input encouraging consistent terminology across child
nutrition programs.
USDA acknowledges that some respondents recommended including the
word ``dry'' before the NSLP vegetable subgroup name ``beans, peas, and
lentils,'' to differentiate from green peas and green beans. However,
USDA has opted to maintain the proposed terminology change without
modification. As noted, the vegetable subgroup name in the Dietary
Guidelines is ``beans, peas, and lentils.'' Therefore, the terminology
for the NSLP vegetable subgroup name finalized in this rule aligns with
the Dietary Guidelines. To clarify, the vegetables that count toward
this subgroup in the school meal programs have not changed; only the
name of the subgroup has changed. Green peas will continue to count
toward the starchy vegetable subgroup, and fresh green beans will
continue to count toward the ``other'' vegetable subgroup.\166\
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\166\ According to the Dietary Guidelines, ``Green peas and
green (string) beans are not counted in the beans, peas, and lentils
subgroup because the nutrient content of these vegetables is more
similar to vegetables in other subgroups.'' The Dietary Guidelines
consider green peas to be a starchy vegetable, and green beans to be
part of the ``other'' vegetable subgroup. NSLP regulations for the
vegetable subgroups reflect the Dietary Guidelines. See ``About
Beans, Peas, and Lentils,'' page 31. U.S. Department of Agriculture
and U.S. Department of Health and Human Services. 2020-2025 Dietary
Guidelines for Americans. 9th Edition. December 2020. Available at:
https://www.dietaryguidelines.gov/.
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While USDA encourages stakeholders to update materials to reflect
this change, USDA anticipates a transition period and does not expect
these updates to happen immediately. State and local operators will not
be penalized for using the prior terminology.
Accordingly, this final rule amends 7 CFR parts 210, 220, 225, and
226 to change references to ``legumes (beans and peas)'' and ``beans
and peas (legumes)'' to ``beans, peas, and lentils.'' Child nutrition
program operators are not required to change menus or
[[Page 32036]]
operations as a result of this terminology change, but are encouraged
to proactively transition to the new terminology.
Technical Corrections
This final rule makes several additional technical corrections to
the regulations, which are outlined by regulatory section below. These
proposed technical corrections would not make substantive changes to
the child nutrition programs. Instead, the proposed corrections, which
are reflected in the proposed amendatory language, generally fall into
the following categories:
Removing outdated terminology or updating terminology and
definitions for consistency across regulations.
Removing outdated implementation dates.
Removing requirements that are no longer in effect.
Reordering the school meal pattern meal component
paragraphs to reflect the order used in the meal pattern tables.
Revising meal pattern tables to improve usability.
Correcting erroneous cross-references.
Please see Note about Amendatory Instructions, below, for
information about how these changes are addressed in the amendatory
instructions.
7 CFR part 210: National School Lunch Program
7 CFR 210.2 Definitions
Remove definition of CND, which is no longer in use.
Replace the definition of Food component with the
definition of Meal component.
Redesignate paragraphs to use numbers instead of letters
(e.g., (1) and (2) instead of (a) and (b)) in the definitions of
Reduced price lunch, School, State agency, and State educational
agency.
Remove outdated language in the definition of Residential
child care institution.
Revise the definition of Yogurt to reflect changes to the
FDA standard of identity of yogurt.
7 CFR 210.3 Administration
7 CFR 210.3(a): Remove sentence referring to ``the CND,''
a term no longer in use.
7 CFR 210.4 Cash and Donated Food Assistance to States
7 CFR 210.4(b)(3): Remove incorrect cross-reference to
afterschool snacks section of regulations (Sec. 210.10(n)) and add the
correct cross-reference (Sec. 210.10(o)).
7 CFR 210.7 Reimbursement for School Food Authorities
7 CFR 210.7(d): Remove erroneous cross-reference to Sec.
220.23, which is no longer in effect.
7 CFR 210.7(e): Correct erroneous cross-reference to
afterschool snacks section of regulation (from Sec. 210.10(n)(1) to
Sec. 210.10(o)(1)).
7 CFR 210.9 Agreement With State Agency
7 CFR 210.9(b)(21): Remove outdated implementation date.
7 CFR 210.9(c): Remove incorrect cross-reference to
afterschool snacks section of regulations (Sec. 210.10(n)(1)) and add
the correct cross-reference (Sec. 210.10(o)(1)).
7 CFR 210.10 Meal Requirements for Lunches and Requirements for
Afterschool Snacks
Change all references from ``food components'' to ``meal
components''.
7 CFR 210.10(c): Add minimum creditable amount for all
meal components in meal pattern table footnotes.
In meal pattern tables, add or revise titles for clarity.
In meal pattern tables, change footnotes to use numbers
instead of letters and combine related footnotes to improve
readability.
7 CFR 210.11 Competitive Food Service and Standards
7 CFR 210.11(m) (redesignated to paragraph (l)): Combine
fluid milk and milk alternatives paragraphs and cross-reference Sec.
210.10(d)(1) and (2) instead of repeating milk standards in Sec.
210.11.
7 CFR 210.11(m) (redesignated to paragraph (l)): Adjust
punctuation to improve readability.
7 CFR 210.11(i) and (n): Remove outdated implementation
dates.
7 CFR 210.12 Student, Parent, and Community Involvement
7 CFR 210.12(e): Correct erroneous cross-reference to
local school wellness policies by replacing Sec. 210.30(d) with Sec.
210.31(d).
7 CFR 210.14 Resource Management
7 CFR 210.14(e): Remove outdated implementation date.
7 CFR 210.14(e)(5)(ii)(D): Remove outdated implementation
date.
7 CFR 210.14(e)(6)(iii): Remove outdated language.
7 CFR 210.14(f): Remove outdated implementation date.
7 CFR 210.15 Reporting and Recordkeeping
7 CFR 210.15(b)(9): Correct erroneous cross-reference to
local school wellness policies by replacing Sec. 210.30(f) with Sec.
210.31(f).
7 CFR 210.18 Administrative Reviews
7 CFR 210.18(h)(2)(x): Correct erroneous cross-reference
to local school wellness policies by replacing Sec. 210.30 with Sec.
210.31.
7 CFR 210.19 Additional Responsibilities
7 CFR 210.19(f): Remove outdated implementation date.
7 CFR 210.20 Reporting and Recordkeeping
7 CFR 210.20(a)(6) and (7): Remove requirements that are
no longer in effect.
7 CFR 210.20(b)(10): Remove requirement that is no longer
in effect.
7 CFR 210.29 Management Evaluations
7 CFR 210.29(d)(3): Remove incorrect physical address for
the Food and Nutrition Service.
7 CFR Part 220: School Breakfast Program
7 CFR 220.2 Definitions
Remove erroneous cross-references to Sec. 220.23, which
is no longer in effect.
Remove definitions of CND, OA, and OI, which are no longer
in use.
Revise definitions of Department, Distributing agency,
Fiscal year, FNS, FNSRO, Free breakfast, Reduced price breakfast,
Reimbursement, School Food Authority, and State agency for consistency
with definitions in 7 CFR 210.2.
Remove the definition of Food component and instead add
the definition of Meal component.
Remove the definitions of Menu item and Nutrient Standard
Menu Planning/Assisted Nutrient Standard Menu Planning, which are no
longer in use under food-based menu planning.
Remove the second definition of Non-profit, which is
duplicative and outdated.
Remove outdated language in the definition of Residential
child care institution.
Revise the definition of Yogurt to reflect changes to the
FDA standard of identity of yogurt.
7 CFR 220.3 Administration
7 CFR 220.3(a): Remove sentence referring to ``the CND,''
a term no longer in use.
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7 CFR 220.7 Requirements for Participation
7 CFR 220.7(e)(2), (4), (5), (9), and (13): Revise
language for clarity and remove outdated references.
7 CFR 220.7(h): Correct erroneous cross-reference to local
school wellness policies by replacing Sec. 210.30 with Sec. 210.31.
7 CFR 220.8 Meal Requirements for Breakfasts
Change all references from ``food components'' to ``meal
components''.
7 CFR 220.8(a)(2): Change reference from ``reimbursable
lunch'' to ``reimbursable breakfast''.
7 CFR 210.10(c): Add minimum creditable amount for all
meal components in meal pattern table footnotes.
In meal pattern tables, add or revise titles for clarity.
In meal pattern tables, change footnotes to use numbers
instead of letters and combine related footnotes to improve
readability.
7 CFR 210.10(c)(2)(i)(A): Remove reference to crediting
enriched macaroni at lunch.
7 CFR 210.10(c)(2)(v): Add fluid milk as a listed meal
component in paragraph (c)(2).
7 CFR 220.13 Special Responsibilities of State Agencies
7 CFR 220.13(b)(3): Remove requirements that are no longer
in effect.
7 CFR 220.13(c): Remove outdated references to ``OI''.
