Child Nutrition Programs: Transitional Standards for Milk, Whole Grains, and Sodium
| Published date | 07 February 2022 |
| Citation | 87 FR 6984 |
| Record Number | 2022-02327 |
| Section | Rules and Regulations |
| Court | Food And Nutrition Service |
Federal Register, Volume 87 Issue 25 (Monday, February 7, 2022)
[Federal Register Volume 87, Number 25 (Monday, February 7, 2022)]
[Rules and Regulations]
[Pages 6984-7023]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-02327]
[[Page 6983]]
Vol. 87
Monday,
No. 25
February 7, 2022
Part IIIDepartment of Agriculture-----------------------------------------------------------------------Food and Nutrition Service-----------------------------------------------------------------------7 CFR Parts 210, 215, 220, et al.Child Nutrition Programs: Transitional Standards for Milk, Whole
Grains, and Sodium; Final Rule
Federal Register / Vol. 87 , No. 25 / Monday, February 7, 2022 /
Rules and Regulations
[[Page 6984]]
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DEPARTMENT OF AGRICULTURE
Food and Nutrition Service
7 CFR Parts 210, 215, 220, and 226
[FNS-2020-0038]
RIN 0584-AE81
Child Nutrition Programs: Transitional Standards for Milk, Whole
Grains, and Sodium
AGENCY: Food and Nutrition Service (FNS), USDA.
ACTION: Final rule with request for comments.
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SUMMARY: USDA is finalizing its November 25, 2020, proposed rulemaking
regarding child nutrition meal pattern requirements. This final rule
will establish transitional standards to support the continued
provision of nutritious school meals as schools respond to and recover
from the pandemic and while USDA engages in notice-and-comment
rulemaking to update the meal pattern standards to more comprehensively
reflect the Dietary Guidelines for Americans, 2020-2025. This final
rule will provide immediate relief to schools during the return to
traditional school meal service following extended use of COVID-19 meal
pattern flexibilities. This rule finalizes the proposed milk provision
by allowing local operators of the National School Lunch Program and
School Breakfast Program to offer flavored, low-fat milk (1 percent
fat) for students in grades K through 12 and for sale as a competitive
beverage. It will also allow flavored, low-fat milk in the Special Milk
Program for Children and in the Child and Adult Care Food Program for
participants ages 6 and older. Beginning in SY 2022-2023, this final
rule will require at least 80 percent of the weekly grains in the
school lunch and breakfast menus to be whole grain-rich. Lastly, this
final rule will modify the proposed sodium standards and establish
Sodium Target 1 as the sodium limit for school lunch and breakfast in
SY 2022-2023 as proposed, but implement a Sodium Interim Target 1A
effective for school lunch beginning in SY 2023-2024.
DATES:
Effective date: This final rule will become effective July 1, 2022.
Comment date: Written comments on this final rule should be
received on or before March 24, 2022, to receive consideration.
ADDRESSES: The Food and Nutrition Service, USDA, invites interested
persons to submit written comments on the provisions of this final
rule. Interested persons are also invited to comment on considerations
for future rulemaking related to the school nutrition requirements. In
the coming months, the public will have an additional opportunity to
comment when the Food and Nutrition Service publishes a new proposed
rule related to the school meal pattern requirements. Comments related
to this final rule may be submitted in writing by one of the following
methods:
Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting
comments.
Mail: Send comments to Tina Namian, Chief, School Programs
Branch, Policy and Program Development Division--4th Floor, Food and
Nutrition Service, 1320 Braddock Place, Alexandria, VA 22314;
telephone: 703-305-2590.
All written comments submitted in response to this final rule will
be included in the record and will be made available to the public.
Please be advised that the substance of the comments and the identity
of the individuals or entities submitting the comments will be subject
to public disclosure. The Food and Nutrition Service will make the
written comments publicly available on the internet via http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Tina Namian, Chief, School Programs
Branch, Policy and Program Development Division--4th Floor, Food and
Nutrition Service, 1320 Braddock Place, Alexandria, VA 22314;
telephone: 703-305-2590.
SUPPLEMENTARY INFORMATION:
Table of Abbreviations
APA--Administrative Procedure Act
CACFP--Child and Adult Care Food Program
FDA--U.S. Food and Drug Administration
FFCRA--Families First Coronavirus Response Act
FNS--Food and Nutrition Service
HEI--Healthy Eating Index
ICN--Institute of Child Nutrition
NSLP--National School Lunch Program
SBP--School Breakfast Program
SFA--School Food Authority
SFSP--Summer Food Service Program
SMP--Special Milk Program
SY--School Year
USDA--United States Department of Agriculture
I. Background
This final rule establishes transitional standards for the Child
Nutrition Program requirements related to milk, whole grains, and
sodium to support schools after more than two years of serving meals
under pandemic conditions. This final rule will apply as the U.S.
Department of Agriculture (USDA) works to strengthen the school meal
pattern requirements through another notice-and-comment rulemaking
based on a comprehensive review of the Dietary Guidelines for
Americans, 2020-2025 (Dietary Guidelines). As described further below,
USDA plans to promulgate a new rule for long-term meal pattern
requirements to be effective starting in school year (SY) 2024-2025.
The standards in this final rule are intended to be transitional and in
effect for only two school years (SY 2022-2023 and SY 2023-2024). In
case of a delay, the standards in this rule will remain effective until
subsequent standards are promulgated. Nevertheless, because USDA
intends to establish new meal pattern requirements for SY 2024-2025 and
beyond, the standards in this rule will be referred to as
``transitional.''
This rule finalizes the proposed rule Restoration of Milk, Whole
Grains, and Sodium Flexibilities (85 FR 75241, November 25, 2020) with
some modifications based on review of the comments received,
circumstances caused by the COVID-19 pandemic, and current dietary
science. Although the proposed rule would have implemented permanent
changes to the school meal standards, USDA agrees with public comments
that making permanent changes in response to circumstances created by
COVID-19 is not a viable long-term solution. However, public comments
also asserted that due to the financial and operational impacts of the
pandemic, it would be unrealistic for USDA to expect schools to fully
meet certain meal standard requirements in the immediate term, and
supported allowing more time for product innovation and implementation.
As noted, following publication of this final rule, USDA intends to
propose a new rulemaking to continue to support successful, science-
based meal pattern requirements based on a comprehensive review of the
Dietary Guidelines for Americans, 2020-2025 and meaningful stakeholder
input. USDA will develop updated standards through the new rulemaking
for implementation in SY 2024-2025 and beyond, based on current
nutrition science and public input on how to build on the success of
school meals in supporting healthy eating and improved dietary
outcomes.
In 2012, the USDA updated the National School Lunch Program (NSLP)
and School Breakfast Program (SBP) meal requirements, as required by
the National School Lunch Act in Section 4(b)(3)(A), 42 U.S.C.
1753(b)(3)(A). These new meal requirements were a key component of the
Healthy, Hunger-
[[Page 6985]]
Free Kids Act, (Pub. L. 111-296), and raised school meal nutrition
standards for the first time in more than 15 years. The updated
requirements were largely based on recommendations issued by the
National Academy of Medicine (formerly the Institute of Medicine),
which, in turn, were based on the 2005 Dietary Guidelines. The
implementing regulations \1\ increased the availability of fruits,
vegetables, whole grains, and fat-free and low-fat milk in school
meals; limited sodium and saturated fat and eliminated trans fat in the
weekly school menu; and established calorie ranges intended to meet
part of the age-appropriate calorie needs of children.
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\1\ 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.
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Regarding the milk, grains, and sodium requirements, the
regulations implemented in 2012:
Allowed flavoring only in fat-free milk in the NSLP and
SBP;
Required that at least half of the grains offered in the
NSLP be whole grain-rich (meaning the grain product contains at least
50 percent whole grains and the remaining grain content of the product
must be enriched) in SY 2012-2013 and one year later in the SBP; and
required that effective SY 2014-2015, all grains offered in both
programs be whole grain-rich; and
Required schools participating in the NSLP and SBP to
reduce the sodium content of meals offered on average over the school
week by meeting progressively lower sodium targets over a 10-year
period (Target 1, Target 2, and the Final Target).\2\
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\2\ Sodium reduction timeline and amounts in the National School
Lunch Program, from final rule Nutrition Standards in the National
School Lunch and School Breakfast Programs (77 FR 4088, January 26,
2012).
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Target 1 (mg) Target 2 (mg) Final Target (mg)
Age/grade group July 1, 2014 July 1, 2017 July 1, 2022 (SY
(SY 2014-2015) (SY 2017-2018) 2022-2023)
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K-5.................................................... https://jamanetwork.com/journals/jamanetworkopen/fullarticle/2778453?utm_source=For_The_Media&utm_medium=referral&utm_campaign=ftm_links&utm_term=040921.
\4\ For more information about the Healthy Eating Index, see How
the HEI Is Scored: https://www.fns.usda.gov/how-hei-scored.
\5\ School Nutrition and Meal Cost Study findings suggest that
the updated nutrition standards have had a positive and significant
influence on the nutritional quality of school meals. Between SY
2009-2010 and SY 2014-2015, ``Healthy Eating Index-2010'' (HEI)
scores for NSLP and SBP increased significantly, suggesting that the
updated standards significantly improved the nutritional quality of
school meals. Over this period, the mean HEI score for NSLP lunches
increased from 57.9 to 81.5, and the mean HEI score for SBP
breakfasts increased from 49.6 to 71.3. The study is 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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However, full implementation of the 2012 meal pattern requirements
for milk, whole grains, and sodium has been delayed due to legislative
and administrative actions. Through multiple annual appropriations
bills,\6\ Congress directed USDA to provide flexibilities for these
specific requirements. Mainly in response to this congressional
direction, USDA issued several policy memoranda addressing the affected
nutritional requirements for each specified time period.\7\ For
example, as required by the Consolidated Appropriations Act, 2017 (Pub.
L. 115-31), USDA issued policy guidance providing milk, whole grains,
and sodium flexibilities for SY 2017-2018.\8\ This guidance allowed
State agencies to grant exemptions to allow flavored, low-fat milk in
the NSLP and SBP and as a competitive food if schools demonstrated
hardship by documenting a reduction in student milk consumption or an
increase in school milk waste. For whole grains, the guidance allowed
State agencies to offer exemptions to the whole grain-rich requirements
if SFAs could demonstrate hardship in procuring, preparing, or serving
compliant products that were accepted by students. Finally, for sodium,
the guidance allowed schools
[[Page 6986]]
to continue to meet Sodium Target 1 in SY 2017-2018.
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\6\ These include Section 743 of the Consolidated and Further
Continuing Appropriations Act, 2012 (Pub. L. 112- 55); Sections 751
and 752 of the Consolidated and Further Continuing Appropriations
Act, 2015 (Pub. L. 113-235); Section 733 of the Consolidated
Appropriations Act, 2016 (Pub. L. 114-113); Section 747 of the
Consolidated Appropriations Act, 2017 (Pub. L. 115- 31)
(Consolidated Appropriations Act, 2017). For a more detailed
discussion, please see the interim final rule Child Nutrition
Programs: Flexibilities for Milk, Whole Grains, and Sodium
Requirements (82 FR 56703, at 56704, November 30, 2017). Available
at: https://www.federalregister.gov/documents/2017/11/30/2017-25799/child-nutrition-programs-flexibilities-for-milk-whole-grains-and-sodium-requirements.
\7\ These include SP 20-2015, Requests for Exemption from the
School Meals' Whole Grain-Rich Requirement for School Years 2014-
2015 and 2015-2016; SP 33-2016, Extension Notice: Requests for
Exemption from the School Meals' Whole Grain-Rich Requirement for
School Year 2016-2017; and SP 32-2017, School Meal Flexibilities for
School Year 2017-2018.
\8\ SP 32-2017, May 22, 2017, School Meal Flexibilities for
School Year 2017-2018.
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USDA's policy guidance for SY 2017-2018 was followed by the interim
final rule Child Nutrition Programs: Flexibilities for Milk, Whole
Grains, and Sodium Requirements (82 FR 56703, November 30, 2017), which
established regulations that extended school meal flexibilities through
SY 2018-2019 and applied the flavored milk flexibility to the Special
Milk Program for Children (SMP) and the Child and Adult Care Food
Program (CACFP) for participants age 6 and older in SY 2018-2019 only.
As a result, the regulations applicable in SY 2018-2019 provided
flexibility in three specific areas while retaining other essential
meal requirements from the 2012 rule (for example, fruit and vegetable
quantities, saturated and trans fat limits, and calorie ranges) that
contribute to heathy meals. In brief, for SY 2018-2019, the interim
final rule:
Provided NSLP and SBP operators the option to offer
flavored, low-fat (1 percent fat) milk with reimbursable meals in
grades K through 12 and as a beverage for sale during the school day,
and applied the flexibility in the SMP and CACFP for participants age 6
and older;
Allowed State agencies to continue granting school food
authority (SFA) exemption requests to use specific alternative grain
products if the SFA could demonstrate hardship(s) in procuring,
preparing, or serving specific products that were acceptable to
students and compliant with the whole grain-rich requirement; and
Retained Sodium Target 1 in the NSLP and SBP.
USDA issued a final rule in December 2018 (83 FR 63775, December
12, 2018). In general, the 2018 final rule, which became effective on
July 1, 2019, generally codified the flexibilities offered in the 2017
interim final rule but made some key modifications. The optional
flexibilities codified in the 2018 final rule included the following
targeted changes with the balance of the meal pattern remaining intact:
Allowing schools in the NSLP and SBP to offer flavored,
low-fat milk at lunch and breakfast for grades K through 12 and as a
beverage for sale [agrave] la carte, and requiring that unflavored milk
(fat-free or low-fat) be available at each school meal service, as well
as allowing flavored, low-fat milk in the SMP and CACFP for
participants ages 6 and older, for consistency across the Child
Nutrition Programs;
Requiring that at least half of the weekly grains in the
NSLP and SBP be whole grain-rich and that the remaining weekly grains
offered be enriched; and
Retaining Sodium Target 1 through SY 2023-2024, moving
Target 2 to SY 2024-2025, and eliminating the Final Target.
On April 3, 2019, the Center for Science in the Public Interest
challenged the 2018 final rule claiming the regulation was unlawful
under the Administrative Procedure Act (APA). On April 13, 2020, the
District of Maryland, in Center for Science in the Public Interest v.
Perdue, 438 F. Supp. 3d 546 (D. Md. 2020), vacated the rule. The court
found that while the standards finalized by that rule were reasonable
interpretations of relevant statutory language that gave discretion to
USDA to promulgate standards ``based on'' the Dietary Guidelines but
not necessarily matching the Dietary Guidelines, 438 F. Supp. 3d at
562-64, the 2018 final rule was not a logical outgrowth of the 2017
interim final rule, and therefore violated the APA.
When the 2018 final rule was vacated, the meal pattern requirements
immediately reverted to the 2012 regulations. USDA published a notice
in the Federal Register that removed the regulatory text that was
changed by the 2018 final rule and replaced it with the regulatory text
from the 2012 final rule (85 FR 74847, November 24, 2020). In addition,
on November 25, 2020, USDA issued a new proposed rule that would have
codified the operational flexibilities included in the 2018 final rule
(85 FR 75241, November 25, 2020).
The vacatur of the 2018 rule coincided with the COVID-19 pandemic.
Beginning in March 2020, using authority provided by the Families First
Coronavirus Response Act (FFCRA) (Pub. L. 116-127), which was not at
issue in the court ruling, USDA published a series of nationwide
waivers to provide flexibility to a variety of program requirements so
that children continued to have access to nutritious meals during the
pandemic.\9\ Along with several other waivers, meal pattern waivers
provided by USDA facilitated the service of grab-and-go meals, which
helped schools provide a safe and socially distanced meal service for
the remainder of SY 2019-2020. For example, under the standard NSLP and
SBP requirements, meals must meet age/grade group requirements and
children must have a choice (at least two different options) for fluid
milk. The waivers gave schools flexibility for these and other
requirements that were more difficult to meet when serving pre-packaged
meals, bulk meals, or to-go meals that parents or guardians took home
to their children. During SY 2020-2021, using FFCRA authority,\10\ USDA
provided waivers to allow schools to operate the Summer Food Service
Program (SFSP), which operates under separate, simpler meal pattern
requirements, and which was not affected by the court ruling. For SY
2021-2022, USDA focused on supporting the safe reopening of schools and
moving toward meals that meet the NSLP and SBP standards. To this end,
USDA issued a nationwide waiver based on the FFCRA authority allowing
schools to operate the NSLP Seamless Summer Option, which follows the
NSLP and SBP meal patterns, during the regular school year. Under
another nationwide waiver, schools that were unable to meet the NSLP
and SBP standards due to the pandemic could request targeted meal
pattern waivers from their State agency, including those providing
flexibility for the milk, whole grains, and sodium requirements.\11\
Therefore, the new, independent statutory authority that Congress
provided in response to COVID-19 authorized significant but temporary
flexibilities from the 2012 standards for milk, whole grains, and
sodium. USDA recognizes that schools may not be prepared to immediately
implement the 2012 meal standards for milk, whole grains, and sodium
when the current COVID-19 meal pattern waiver expires on June 30, 2022.
With this rule, USDA intends to provide a transitional approach in
these areas while also acknowledging that a return to stronger
nutrition standards is imperative to support healthy eating and
improved dietary outcomes.
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\9\ USDA's COVID-19 nationwide waivers are available at: https://www.fns.usda.gov/fns-disaster-assistance/fns-responds-COVID-19/child-nutrition-COVID-19-waivers.
\10\ On October 1, 2020, the FFCRA was extended by the
Continuing Appropriations Act 2021 and Other Extensions Act (Pub. L.
116-159).
\11\ See Nationwide Waiver to Allow Specific School Meal Pattern
Flexibility for School Year 2021-2022: https://www.fns.usda.gov/cn/child-nutrition-response-90.
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Establishing Strong School Meal Nutrition Standards
Throughout the pandemic, the critical role of the school meal
programs has become increasingly clear. Food hardship increased in
spring 2020 and has remained high during the public health emergency.
In March 2021, households with children were more likely to report that
their household did not get enough to eat (11 percent, compared to 7
percent of households without children). Black and Latino households
also experienced disproportionate rates of food hardship; in March
2021, 16 percent of Black and
[[Page 6987]]
Latino households reported that their household did not get enough to
eat compared to 6 percent of White households.\12\ Federal nutrition
programs, including the school meal programs, have played a critical
role in supporting individuals, families, and children facing food and
nutrition insecurity during this challenging time. In response to the
COVID-19 pandemic, it was essential for USDA to provide schools with
broad flexibility to support families in need. It is equally critical
now to establish the pathway to return to strong school nutrition
standards consistent with current dietary science.
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\12\ Center on Budget and Policy Priorities: Number of Families
Struggling to Afford Food Rose Steeply in Pandemic and Remains High,
Especially Among Children and Households of Color, April 27, 2021.
Available at: https://www.cbpp.org/sites/default/files/4-27-21fa2.pdf.
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School meals are one of the most powerful tools for ensuring
children have access to healthy and nutritious food, and evidence shows
that strong school nutrition standards are effective. After the 2012
rule went into effect, the HEI component scores for fruits jumped from
77 percent to 95 percent of the maximum score, and the scores for
vegetables jumped from 75 percent to 82 percent. The updated standards
also reduced empty calories, with the HEI component score for empty
calories improving from 73 percent to 96 percent of the maximum
possible score.\13\ USDA research on implementation of the 2012
standards also found that students who ate school lunches were more
likely to consume milk, fruits, and vegetables at lunch, and less
likely to consume desserts, snack items, and non-milk beverages at
lunch, compared to students who ate lunches from home or other
places.\14\ Another study found higher diet quality associated with the
2012 rule extended to low-income, low-middle-income, and middle-high-
income students participating in the school lunch program.\15\ Recent
research shows that U.S. children get their healthiest meals of the day
at school,\16\ and for many children, the meals they receive from
school are a primary source of food, providing up to half their dietary
intake every school day.\17\
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\13\ See School Meals Are More Nutritious After Updated
Nutrition Standards. Available at: https://fns-prod.azureedge.net/sites/default/files/resource-files/SNMCS_infographic2_NutritionalQualityofSchool%20Meals.pdf.
\14\ See Lunches Consumed From School Are the Most Nutritious.
Available at: https://fns-prod.azureedge.net/sites/default/files/resource-files/SNMCS_infographic5_SchoolLunchesAretheMostNutritious.pdf.
\15\ Kinderknecht K, Harris C, Jones-Smith J. Association of the
Healthy, Hunger-Free Kids Act With Dietary Quality Among Children in
the US National School Lunch Program. JAMA. July 28, 2020. Available
at: https://jamanetwork.com/journals/jama/article-abstract/2768807.
\16\ 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.
\17\ 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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Improving nutrition is a critical element in preventing childhood
obesity, which puts children at risk for poor health,\18\ and in
combatting the serious effects of diet-related disease. The pandemic
has added urgency to the already critical issue of nutrition
insecurity, as diet-related chronic diseases including diabetes,
hypertension, and heart failure made people more vulnerable to COVID-
19.\19\ Further, these conditions are costly; total spending to treat
cardiovascular disease, cancer, and diabetes in the United States was
$383.6 billion in 2018, which was 18 percent higher than in 2009.
According to the Government Accountability Office, government spending
accounted for the majority (54 percent) of spending for treatment of
cardiovascular diseases, cancer, and diabetes in 2018. Total government
spending for diet-related health conditions increased 30 percent from
2009 through 2018.\20\ Children facing nutrition insecurity are at a
higher risk for diet-related chronic diseases. By contrast, healthy
eating can reduce an individual's risk of developing high blood
pressure, heart disease, type 2 diabetes, cancer, and other harmful
conditions.\21\
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\18\ According to the Centers for Disease Control and
Prevention, in 2017-2018, the prevalence of obesity was 19.3 percent
among children and adolescents, aged 2-19. Childhood obesity is also
more common among certain populations. See Centers for Disease
Control and Prevention: Childhood Obesity Facts--Prevalence of
Childhood Obesity in the United States. Available at: https://www.cdc.gov/obesity/data/childhood.html.
\19\ Coronavirus Disease 2019 Hospitalizations Attributable to
Cardiometabolic Conditions in the United States: A Comparative Risk
Assessment Analysis. O'Hearn M, Liu J, Cudhea F, Micha R,
Mozaffarian D. J Am Heart Assoc. February 2021. Available at:
https://www.nih.gov/news-events/nih-research-matters/most-COVID-19-hospitalizations-due-four-conditions.
\20\ Government Accountability Office, Chronic Health
Conditions--Federal Strategy Needed to Coordinate Diet-Related
Efforts. August 17, 2021. Available at: https://www.gao.gov/products/gao-21-593.
\21\ Centers for Disease Control and Prevention, Child Nutrition
Facts. Available at: https://www.cdc.gov/healthyschools/nutrition/facts.htm.
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Research also shows that chronic health conditions can be more
common or severe for some racial and ethnic groups. For example, from
2013 to 2016, total age-adjusted diabetes was higher among Hispanic (18
percent) and non-Hispanic Black (17 percent) adults compared to non-
Hispanic White (10 percent) adults. Further, from 2017 to 2018,
American Indian and Alaska Native adults had the highest age-adjusted
prevalence rates of diagnosed diabetes by race/ethnicity.\22\ While
many complex factors drive health disparities, increasing access to
healthy foods is an important part of the solution. USDA research
suggests that Black and Hispanic children participate in the school
meal programs at higher rates than White children,\23\ meaning that the
school meal nutrition standards are an important tool in addressing
health disparities and supporting racial equity. This makes it all the
more important that USDA, in partnership with State agencies, schools,
and other stakeholders, raises the bar on meal quality for children.
School nutrition professionals have demonstrated their commitment to
serving our children throughout the pandemic, and USDA applauds their
efforts. As we collectively respond to and recover from COVID-19, it is
important to provide children with the most nutritious food possible.
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\22\ Centers for Disease Control and Prevention, CDC's Racial
and Ethnic Approaches to Community Health Program. Available at:
https://www.cdc.gov/chronicdisease/resources/publications/factsheets/reach.htm.
\23\ Overall, 70 percent of Hispanic and non-Hispanic Black
students participated in the NSLP on the target day, compared with
about half of non-Hispanic white students. See: 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://fns-prod.azureedge.net/sites/default/files/resource-files/SNMCS-Volume4.pdf. (OMB Control Number
0584-0596, expiration date 07/31/2017.)
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USDA is committed to working with its partners at all levels to
achieve this shared goal. However, as acknowledged in the proposed
rule, the menu planning challenges experienced by some schools, which
have become significantly more difficult during the ongoing global
pandemic and supply chain disruptions, necessitates a balance between
nutrition science, practical application of requirements, and the need
to ensure that children receive school meals they will eat.
Accordingly, this final rule establishes transitional standards that
apply only to the milk, whole grains, and sodium requirements.
[[Page 6988]]
Further, after considering public comments, in this final rule, USDA
has modified the whole grains and sodium provisions to provide measured
improvements in these areas during this transition period, as USDA
develops longer-term standards that are achievable and aligned with the
Dietary Guidelines. The other components of the 2012 regulations will
remain in place.
As described in the next section, USDA will build on this final
rule with a new rulemaking that comprehensively incorporates the
updated Dietary Guidelines and nutrition science. The Dietary
Guidelines provide science-based recommendations on what to eat and
drink to promote health, reduce risk of chronic disease, and meet
nutrient needs. The goals of the Dietary Guidelines, 2020-2025 include
a healthy dietary pattern that consists of nutrient-dense forms of
foods and beverages across all food groups, in recommended amounts, and
within calorie limits. They note the core elements that make up a
healthy dietary pattern include vegetables and fruits of all types,
grains, dairy, protein foods, and oils. The guidelines also recommend
limiting foods and beverages that are higher in added sugars, saturated
fat, and sodium. Stakeholders have emphasized the importance of
aligning school meal nutrition standards with the Dietary Guidelines,
as well as the importance of supporting schools in meeting stronger
standards.\24\ USDA is committed to its statutory obligation to develop
school meal nutrition standards that are consistent with the goals of
the latest Dietary Guidelines, and is committed to working toward this
effort immediately following this rule.
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\24\ USDA-FNS Listening Session with Nutrition Advocacy Groups,
June 29, 2021. Available at: https://www.regulations.gov/docket/FNS-2020-0038/document.
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Multi-Stage Approach to Nutrition Standards
USDA's long-term goal is to establish regulations that align school
meal nutrition standards with the Dietary Guidelines, 2020-2025 and
support the successful provision of appealing and nutritious meals to
millions of students each day. However, in response to the proposed
rule, USDA received comments from a variety of stakeholders, including
State agencies, advocacy and industry groups, and school nutrition
professionals, noting the unprecedented disruptions that schools have
faced over the last several years, particularly due to the COVID-19
pandemic. For example, public comments from two State agencies
expressed support for a transitional approach to the sodium standards,
noting that it would be challenging for schools to move directly to
Target 2 immediately following the pandemic-related flexibilities. A
school nutrition professional respondent agreed, arguing that requiring
schools to comply with the 2012 standards following administrative
flexibilities and COVID-19 operations is unreasonable; this respondent
also hoped that future regulations could work towards continuing to
improve the nutritional value of school meals. A respondent
representing large school districts pointed out that due to COVID-19,
school meal programs are in ``operational and financial crisis,'' and
asserted that it is likely to take years for school meal programs to
recover and achieve program sustainability. In light of these comments
and experience administering the school meal programs during the
pandemic, USDA recognizes that updating the standards to reflect the
latest dietary recommendations will require thoughtfully addressing the
challenges stakeholders face as a result of the public health emergency
and the subsequent supply chain and meal service disruptions, as well
as the impacts of the multiple delays in implementing specific elements
of the milk, whole grains, and sodium standards prior to the pandemic.
Therefore, USDA is taking a two-stage approach to updating the
school meal nutrition standards. This final rule, which will establish
transitional standards for milk, whole grains, and sodium, is the first
stage. This final rule is intended for two school years only: SY 2022-
2023 and SY 2023-2024.\25\ These transitional standards will balance
the needs of schools as they recover from the challenges noted above,
with measured steps towards improving nutritional quality.
---------------------------------------------------------------------------
\25\ USDA fully expects to have new standards in place for SY
2024-2025 and beyond. However, in case of an unanticipated delay,
the standards set by this rule will remain legally effective until
subsequent standards are promulgated.
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This transitional approach will also allow industry additional time
to reformulate and develop products needed to meet stronger standards,
particularly products lower in sodium that students enjoy. As a food
industry respondent noted, consumer acceptability, and specifically
schoolchildren's acceptance, is critical to sodium reduction efforts.
Other food industry respondents emphasized the need to maintain student
acceptance when reformulating products, and highlighted some specific
challenges with maintaining palatability and food safety when reducing
sodium. A June 2019 USDA study titled Successful Approach to Reducing
Sodium in School Meals, which was referenced in the proposed rule and
in public comments, identified several barriers to meeting Sodium
Target 2 and the Final Sodium Target, including a low-level of demand
for these products outside of the school system, the costs and time
involved in reformulating existing products, limited capacity among
schools to achieve the targets, and challenges with replacing sodium in
some foods given its functionality.\26\ More recently, a 2021 survey of
school nutrition directors found that 62 percent of respondents
considered product or ingredient availability to be a significant
challenge in working towards meeting Sodium Target 2 limits, while
another 33 percent considered product or ingredient availability to be
a moderate challenge. Only 5 percent did not consider product or
ingredient availability to be a challenge in meeting Sodium Target 2
limits.\27\ These concerns were also raised in in public comments,
where some respondents noted how the pandemic has exacerbated issues
with product availability. For example, respondents were unsure about
industry's ability to meet demand for lower sodium products, due to
supply chain and other challenges, and expressed concern about how
product shortages and cost constraints could impact schools.
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\26\ Successful Approaches to Reduce Sodium in School Meals.
Available at: https://fns-prod.azureedge.net/sites/default/files/resource-files/Approaches-ReduceSodium-Volume2.pdf.
\27\ School Nutrition Association. Back to School 2021 Report: A
Summary of Survey Results. Available at: https://schoolnutrition.org/uploadedFiles/News_and_Publications/Press_Releases/Press_Releases/Back-to-School-Report-2021.pdf.
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In the second stage, USDA intends to issue a proposed rule in fall
2022 which will address school meal nutrition standards for SY 2024-
2025 and beyond. The new rulemaking will advance permanent standards
that further demonstrate USDA's commitment to nutritious school meals.
It will thoughtfully consider the areas addressed through this final
rule and ensure that the long-term standards are consistent with the
goals of the Dietary Guidelines, 2020-2025 and nutrition science, as
required by the National School Lunch Act. The new rulemaking will
incorporate meaningful stakeholder input, and will meet the nutritional
needs of America's schoolchildren. USDA intends for the new rule to be
[[Page 6989]]
finalized in summer 2023, well in advance of procurement cycles for SY
2024-2025. USDA invites comments on the milk, whole grain, and sodium
standards discussed in this final rule. USDA also welcomes comments on
all other aspects of the meal pattern; these comments will help inform
USDA's work to permanently update the school meal nutrition standards
through the new rulemaking. USDA encourages the public to provide
comments with the recommendations of the Dietary Guidelines in mind. As
noted, the public will also submit comments on the proposed rule USDA
intends to publish in fall 2022.
II. 2020 Proposed Rule Comment Summary
This final rule follows the proposed rule Restoration of Milk,
Whole Grains, and Sodium Flexibilities (85 FR 75241, November 25,
2020). As noted, this final rule is an important step in USDA's longer-
term effort to update the school nutrition requirements. With this
final rule, USDA is making meaningful, achievable improvements in the
nutritional quality of school meals for the short-term. Following this
rule, USDA will engage in a longer-term effort to further strengthen
the school meal pattern regulations, consistent with the goals of the
Dietary Guidelines and nutrition science.
USDA appreciates public interest in the proposed rule. During the
30-day comment period (November 25, 2020-December 28, 2020), USDA
received a total of 7,493 comments, including 3 non-germane or
duplicate comments. Of the total, 7,041 comments were form letter
copies from five form letter campaigns. USDA received 449 unique
submissions, including 101 unique submissions that provided substantive
comments on issues specific to the rule, including the milk, whole
grain, and sodium standards.
Approximately 2,500 of the comments addressed the length of the
comment period and requested an extension of the 30-day public comment
period. The comment period was not extended; however, USDA carefully
considered the comments received on the proposed rule, the Dietary
Guidelines, 2020-2025, and current challenges stemming from the
pandemic. Further, as explained, this rule implements transitional
standards; USDA will build upon this rule by issuing another notice-
and-comment rulemaking to address standards for SY 2024-2025 and
beyond.
Several respondents noted the impact of COVID-19 on the school meal
programs. One respondent stated that the COVID-19 pandemic resulted in
budget readjustments, food and supply shortages, and staffing
emergencies for school meal programs. A State agency emphasized that
schools may need additional time to transition back to providing meals
that meet the 2012 standards, and noted that it seemed appropriate to
temporarily extend the implementation of certain requirements, like
sodium reductions, given the public health emergency. Several other
respondents argued that USDA should not use the pandemic to make
permanent changes to nutrition standards. Instead, they argued that
USDA should issue temporary waivers, as needed, to respond to pandemic-
related challenges.
In addition to specific comments about the milk, whole grains, and
sodium standards, which are outlined within the section-by-section
analysis of this preamble, respondents provided general feedback on the
proposed rule. Proponents argued that the proposed rule would provide
more menu planning options for schools, enhancing their ability to
offer healthy and appealing meals. They stated the proposed changes
would lead to increased meal consumption and better health outcomes for
children. Proponents argued that the changes represent a permanent
solution to operational challenges, rather than temporary rules and
annual waivers. Some proponents stated that the proposed changes would
provide a more readily available supply of food products. A
professional association asserted that the changes would preserve
important nutrition guidelines, including limits on calories and fat.
Several proponents stated that the proposed changes would not prevent
school districts from having stricter nutrition guidelines, would not
remove fruit and vegetable requirements, and still would encourage
whole grains and lower sodium.
Opponents argued that the proposed changes are not needed because
most schools are in compliance with the meal pattern requirements, and
that the changes could restrain schools' progress in increasing whole
grain consumption and reducing sodium intake. They argued that students
eventually become accustomed to whole grain foods and foods with less
sodium. Several opponents stated that the proposed changes are not in
the best interest of children's health; citing the 2019 School
Nutrition and Meal Cost Study, they suggested that nutritious school
meals lead to improved health outcomes. Other opponents asserted that
healthy school meals improve academic performance. Many opponents cited
USDA research that found that the 2012 rule did not result in increased
food waste. Some opponents stated that school meals should have high
nutrition standards because they can be a source of more than 50
percent of a child's daily caloric intake. Multiple opponents suggested
that the proposed rule would widen disparities in access to healthy
meals for children of color, who are disproportionately impacted by
food insecurity and diet-related chronic conditions, such as diabetes
and hypertension. Several opponents argued that the 2012 meal pattern
requirements promote child nutrition, are reasonable and supported by
the science, and are effective at improving the nutritional quality of
school meals. Many opponents stressed the importance of helping
children develop positive dietary habits for life.
The following table shows tallies of the general comments received
in support of and against the proposed changes. Tables outlining
specific comments regarding the milk, whole grains, and sodium
standards are included in the section-by-section analysis.
General Feedback on Proposed Milk, Whole Grain-Rich, and Sodium Standards
----------------------------------------------------------------------------------------------------------------
Count of total
comments Percent of all Count of Percent of all
Themes received comments unique unique
(including form received comments comments
letters) (7,493) received received (449)
----------------------------------------------------------------------------------------------------------------
General Support
----------------------------------------------------------------------------------------------------------------
Positive health impacts for children........... 36 0.5 36 8.0
Increase meal consumption and decrease food 128 1.7 124 27.6
waste.........................................
[[Page 6990]]
Relieve industry of meal pattern compliance 15 0.2 15 3.3
challenges (such as product development)......
Reduce compliance burden for Program operators. 42 0.6 42 9.1
Other general support.......................... 31 0.4 31 6.9
----------------------------------------------------------------------------------------------------------------
General Opposition
----------------------------------------------------------------------------------------------------------------
Negative health impacts for children........... 2,553 34.1 85 18.9
Negative impacts on children's ability to 4,609 61.5 53 11.8
access healthy meals..........................
Changes are not needed (such as widespread 21 0.3 21 4.7
compliance with existing standards)...........
Inconsistent with Dietary Guidelines........... 2,506 33.4 38 8.5
Other general opposition....................... 16 0.2 16 3.6
----------------------------------------------------------------------------------------------------------------
USDA worked in collaboration with a data analysis company to code
and analyze the public comments using a commercial web-based software
product and obtained data showing support for or opposition to each
proposed change. The Summary of Public Comments report is available
under the Supporting Documentation tab in docket FNS-2020-0038. All
comments are posted online at www.regulations.gov. See docket FNS-2020-
0038, Restoration of Milk, Whole Grains, and Sodium Flexibilities.
III. Transitional Standards
USDA recognizes the importance of promoting strong nutrition
standards, while also providing necessary support to schools as they
respond to and recover from the public health and economic crisis. The
challenges created by COVID-19 and supply chain constraints, raised by
public comments, require a near-term response from USDA, which is
achieved through this final rule. Although the proposed rule would have
implemented permanent changes to the school meal standards, USDA agrees
that making permanent changes in response to temporary circumstances
created by COVID-19 is not a viable long-term solution. Following
publication of this rule, USDA intends to work towards even stronger
nutritional standards for reasons described further below, namely more
positive health outcomes for children. Therefore, USDA will engage in
another full notice-and-comment rulemaking in the near future which
will consider, among other things, the current Dietary Guidelines.
However, until such rulemaking is accomplished, schools need
transitional standards that improve the nutritional content of school
meals in an achievable manner for the short-term.
USDA appreciates comments on the proposed rule that emphasized the
importance of strong nutrition standards and the value of the 2012
requirements. USDA agrees that improving the school meal pattern
standards is critical for ensuring nutrition security, which considers
not only food access, but specifically, access to nutritious food that
promotes health and wellbeing. As noted in the proposed rule, many
schools have made significant progress towards achieving the 2012
standards; for example, the proposed rule noted that 70 percent of the
weekly menus offered at least 80 percent of the grain items as whole
grain-rich.\28\ However, USDA also must consider comments emphasizing
the widespread and ongoing impact of COVID-19 on schools.
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\28\ See footnote 41 of Restoration of Milk, Whole Grains, and
Sodium Flexibilities, November 25, 2020. Available at: https://www.federalregister.gov/documents/2020/11/25/2020-25761/restoration-of-milk-whole-grains-and-sodium-flexibilities#footnote-41-p75252.
See also: ``All Grains are Whole Grain Rich: Percentage Meeting
Requirement and Percentage Below Requirement'' in Tables C.14 and
E.14 of 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://fns-prod.azureedge.net/sites/default/files/resource-files/SNMCS-Volume2.pdf. (OMB Control Number 0584-0596, expiration date 07/31/
2017.)
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The pandemic has impacted the entire Nation, and schools faced
challenges adjusting to widespread closures, online and hybrid
learning, and supply chain issues that affected the school meal service
and the broader school environment. In public comments, respondents
noted that the challenges facing schools are ongoing, and some schools
are not prepared to fully meet the milk, whole grains, and sodium
requirements from the 2012 rule. While USDA does not have current
comprehensive data on schools that would not be prepared to fully meet
these three standards in the absence of this final rule, USDA does have
data on schools that faced challenges with initial implementation of
the milk, whole grains, and sodium standards after the 2012 rule took
effect. According to a study conducted in SY 2014-2015, the most recent
USDA data available, only 27 percent of NSLP menus were offering 100
percent of grains as whole grain-rich.\29\ The same study found that
about 72 percent of weekly lunch menus met the Sodium Target 1
requirement; however, this varied by type of school. For example, about
56 percent of weekly lunch menus in rural schools met Sodium Target 1,
compared to 84 percent of urban schools.\30\ Since then, there have
been
[[Page 6991]]
several years of Congressional and administrative interventions,
followed by two years of meal pattern waivers authorized by Congress in
response to the public health emergency. As a result of these
interventions, the 2012 whole grain-rich requirement and Sodium Target
2 have never been fully implemented; many operators would need to
significantly adapt to return fully to the 2012 nutrition standards.
Moreover, the 2012 milk requirements have not been fully implemented in
more than five years. After careful consideration of the proposed rule
and public comments, USDA believes that it is prudent to provide
transitional standards in the near-term while further revisions to the
meal pattern are considered and established through a new notice-and-
comment rulemaking.
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\29\ See: ``All Grains are Whole Grain Rich: Percentage Meeting
Requirement'' in Table C.14 of 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://fns-prod.azureedge.net/sites/default/files/resource-files/SNMCS-Volume2.pdf. (OMB Control Number 0584-0596, expiration
date 07/31/2017.) Note: In SY 2014-2015, all grains were supposed to
be whole grain-rich. However, State agencies had the option of
granting exemptions to this requirement if an SFA demonstrated
hardship in procuring compliant whole grain-rich products that were
acceptable to students.
\30\ See: ``Sodium: Percentage Meeting Requirement'' in Tables
C.14 and C.16 of 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://fns-prod.azureedge.net/sites/default/files/resource-files/SNMCS-Volume2.pdf. (OMB Control Number 0584-0596, expiration date
07/31/2017.)
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To ensure children were safely fed during the pandemic, schools
served meals in ways they never had before, such as providing curbside
meal service and delivering meals to children's homes. As noted in many
comments, the pandemic has caused huge disruptions to the meal service,
and school nutrition programs are stretched thin financially and
limited in staff; respondents argued that children and staff both will
need time to return to standard operations. They also noted that the
pandemic has created temporary challenges, making it difficult for
manufacturers and distributors to meet the demand for specific
products, such as individually wrapped foods that many schools have
relied on to provide a safe meal service during COVID-19. Vendors have
unexpectedly canceled contracts because they could not fulfill product
orders, or products have been re-directed to other food service
sectors. Schools have reported difficulty obtaining responses to food
bid solicitations and have experienced unpredictable pricing,
inadequate substitutions, and food outages. While USDA expects that
these challenges will ultimately be transitory, USDA agrees that the
school marketplace will require time to recover.
Schools have also reported staff shortages and hiring
challenges,\31\ which have made it more difficult to safely prepare and
serve meals that are compliant with certain meal pattern requirements.
For example, staffing issues may make it harder to do scratch cooking.
Altering recipes (59 percent) and increasing scratch cooking (28
percent) were two practices that SFAs planned to implement to meet
sodium requirements, according to a USDA survey published in June 2021.
Many SFAs (44 percent) also reported altering recipes as a practice to
meet the whole grain-rich standard.\32\ Current staffing and hiring
issues may make it difficult to implement these strategies to meet meal
pattern requirements in the near-term.
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\31\ A 2021 survey of school nutrition directors found that
about 46 percent of survey respondents had reduced staffing, through
reduction in hours, layoffs, or deferred hiring, since March 2020.
School Nutrition Association. Back to School 2021 Report: A Summary
of Survey Results. Available at: https://schoolnutrition.org/uploadedFiles/News_and_Publications/Press_Releases/Press_Releases/Back-to-School-Report-2021.pdf.
\32\ U.S. Department of Agriculture, Food and Nutrition Service,
Office of Policy Support, Child Nutrition Program Operations Study
(CN-OPS-II): SY 2016-17. Beyler, Nick, Jim Murdoch, and Charlotte
Cabili. Project Officer: Holly Figueroa. Alexandria, VA: June 2021.
Available at: https://fns-prod.azureedge.net/sites/default/files/resource-files/CNOPS-II-SY2016-17.pdf.
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Throughout the pandemic, USDA's priorities shifted to focusing on
ensuring children continued to be fed while schools were closed and
modifying the programs to be responsive to changing school
environments, such as social distancing needs, staffing shortages, and
supply chain disruptions, when schools reopened. This has primarily
been accomplished through a series of nationwide waivers. The latest
set of nationwide waivers, which includes the targeted school meal
pattern waiver for SY 2021-2022, will expire on June 30, 2022.\33\
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\33\ USDA issued a series of nationwide waivers to allow non-
congregate meal service, flexible meal times, parent or guardian
meal pick-up, and other flexibilities. These waivers are available
at: https://www.fns.usda.gov/fns-disaster-assistance/fns-responds-COVID-19/child-nutrition-COVID-19-waivers.
---------------------------------------------------------------------------
Finalizing these transitional standards is also critical because
according to public comments received, if the 2012 rule requirements
apply beginning in SY 2022-2023, USDA has heard that the milk, whole
grain, and sodium requirements would be extraordinarily difficult for
all schools to implement successfully. As noted, previous
implementation of these requirements was halted for years prior to the
pandemic, and particularly in the case of sodium, go well beyond what
is achievable given the current range of products available in the
marketplace. In addition, in the near-term, schools are facing
difficulties in procuring food and supplies due to manufacturer
changes, canceled vendor or distributor contracts, product
unavailability, unexpected and lower quality product substitutions,
increased product pricing, and supply chain disruptions; it is not
clear how long it will take to fully recover from these disruptions.
This final rule balances the need to allow adequate time to recover
from these disruptions and prior implementation challenges, with the
need to begin transitioning to stronger nutrition standards. This
transitional standards approach will provide schools with the ability
to make menu adjustments, procurement revisions, and personnel training
necessary to transition back to traditional meal service after COVID-19
operations.
Therefore, after thoughtful deliberation of the current
circumstances, review of comments received in response to the proposed
rule as well as during stakeholder meetings, and consideration of the
current Dietary Guidelines, USDA believes that school nutrition
operators need the transitional standards outlined in this rule in the
near-term, as the Department works diligently to further strengthen the
school meal pattern requirements. The following sections explain the
transitional standards made available through this final rule, which
are effective until long-term standards are promulgated.
A. Milk Standards
As established by the 2012 final rule, current regulations at 7 CFR
210.10(d)(1)(i) and 220.8(d) permit only fat-free milk to be flavored
in the NSLP and SBP; low-fat milk (1 percent fat) must be unflavored.
However, for SY 2017-2018, Congress directed USDA to allow State
agencies to grant exemptions allowing flavored, low-fat milk through
the NSLP and SBP and as a competitive food available for sale, provided
that schools demonstrated hardship.\34\ For SY 2018-2019 and SY 2019-
2020, the 2017 interim final rule and 2018 final rule allowed NSLP,
SMP, SBP, and CACFP operators the option to serve flavored, low-fat
milk as part of the reimbursable meal, and for schools, as a
competitive beverage for sale on campus during the school day.
Moreover, during the pandemic, USDA permitted schools to operate SFSP
at the end of SY 2019-2020 and in SY 2020-2021; the SFSP does not
include any limitations on milkfat or flavoring. For SY 2021-2022, USDA
provided nationwide meal pattern waivers, which allowed SFAs to request
targeted and justified waivers to serve flavored, low-fat milk.
[[Page 6992]]
Additionally, Congress has directed USDA that it cannot restrict the
offering of flavored, low-fat milk through Section 747 of Division A of
the Consolidated Appropriations Act, 2017 (Pub. L. 115-31), and Section
789 of Division A of the Consolidated Appropriations Act, 2021 (Pub. L.
116-260).
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\34\ Congress instructed the Secretary to provide State agencies
this flexibility through the Consolidated Appropriations Act, 2017
(Pub. L. 115-31). Schools were required to demonstrate hardship by
documenting a reduction in student milk consumption or increase in
milk waste.
---------------------------------------------------------------------------
2020 Proposed Rule and Public Comments
In the 2020 proposed rule, USDA proposed to continue to allow
schools the option to offer flavored, low-fat milk in reimbursable
school meals. As described previously, this option has been available
to schools in some form since SY 2017-2018. The proposed rule would
have maintained the requirement that unflavored milk be offered at each
meal service. For consistency, the flavored, low-fat milk option would
have been extended to competitive beverages for sale on campus during
the school day and would apply in the SMP and CACFP for participants
ages 6 and older. USDA also proposed a technical correction to clarify
in CACFP regulations that lactose-free and reduced-lactose fluid milk
meet the CACFP meal pattern requirements for fluid milk. In response to
the 2020 proposed rule, USDA received 4,685 comments regarding the milk
standard. The following table shows tallies of the total and unique
comments received in response to the proposed milk standard:
2020 Proposed Milk Standard
----------------------------------------------------------------------------------------------------------------
Total milk
comments Percent of Unique milk Percent of
Respondent position (including form total milk comments unique milk
letters) comments comments
----------------------------------------------------------------------------------------------------------------
Support........................................ 91 2 91 69
Mixed.......................................... 8 https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/memoranda/2011/m11-10.pdf.
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The final rule's adoption of the proposed milk standards balances
various factors, including the lack of full implementation of the 2012
rule milk standards in recent years and the current Dietary Guidelines.
Section 9(f)(1) of the National School Lunch Act, as amended, 42 U.S.C.
1758(f)(1), requires that school meals are consistent with the goals of
the latest Dietary Guidelines.\36\ Milk is a popular item among
children and is an important source of calcium, vitamin D, and
potassium--nutrients under consumed by the U.S. population.\37\
Flavored milk has received high palatability ratings from children \38\
and has been shown to encourage milk consumption among school-aged
children.\39\ Studies indicate that children drink more flavored milk
than unflavored milk, and that flavored milk served in the school meal
programs is wasted less than unflavored milk.\40\ USDA appreciates
concerns raised by comments regarding flavored milk, and as detailed
below, will consider them in greater detail in the subsequent
rulemaking. While USDA appreciates comments on whole milk, allowing
whole milk in the school meal programs would not align with
recommendations in the Dietary Guidelines, 2020-2025.
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\36\ 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/.
\37\ Cohen JFW, Richardson S, Rimm EB. Impact of the Updated
USDA School Meal Standards, Chef-Enhanced Meals, and the Removal of
Flavored Milk on School Meal Selection and Consumption. J Acad Nutr
Diet. May 29, 2019 May 29. Available at: https://pubmed.ncbi.nlm.nih.gov/31153957/.
\38\ Fayet-Moore F. (2016). Effect of flavored milk vs plain
milk on total milk intake and nutrient provision in children.
Nutrition Reviews; 74(1). Available at: https://academic.oup.com/nutritionreviews/article/74/1/1/1905542.
\39\ Nutrition Standards for Foods in Schools: Leading the Way
Toward Healthier Youth (``IOM Report''), Institute of Medicine, page
58. Available at: http://www.nationalacademies.org/hmd/Reports/2007/Nutrition-Standards-for-Foods-in-Schools-Leading-the-Way-toward-Healthier-Youth.aspx. 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.
\40\ A USDA study found that the mean percentage of wasted milk
was highest for unflavored, fat-free and low-fat milks, and lowest
for flavored, fat-free and low-fat milk. Available at: https://fns-prod.azureedge.net/sites/default/files/resource-files/SNMCS-Volume4.pdf. (OMB Control Number 0584-0596, expiration date 07/31/
2017.)
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USDA is committed to ensuring that school meals provide children
with nutrient-dense foods that are consistent with the goals of the
Dietary Guidelines. Flavored milks (both fat-free and low-fat) contain
added sugars, and USDA will consider their contribution to the overall
amount of added sugars in school meals as it develops subsequent meal
pattern regulations to follow this final rule. The Dietary Guidelines,
2020-2025 recommend that intake of beverages high in added sugars be
limited, and that added sugars consist of no more than 10 percent of
total calories per day for children aged 2 years and older. Although
there are currently no added sugars limits in the school meal programs,
because the NSLP and SBP calorie limits apply to the meals offered on
average over the school week, SFAs that choose to offer flavored, low-
fat milk will need to plan menus carefully to ensure that they stay
within the required calorie limits. SFAs should consult with their
State agency as necessary to make proper menu adjustments.
Consistent with the proposed rule, this final rule also requires
that NSLP and SBP operators that choose to offer flavored milk must
also offer unflavored milk (fat-free or low-fat) at the same meal
service. This requirement ensures that milk variety in the NSLP and SBP
is not limited to flavored milk choices, and that the most nutrient-
dense form of milk is always available. USDA recognizes the importance
of having unflavored milk as a choice for students at each lunch and
breakfast service. The requirement to ensure that unflavored milk is
available on the school menu will not apply in the NSLP afterschool
snack service, the SMP, or the CACFP, consistent with existing
requirements; these programs do not have a requirement to offer a
variety of fluid milk as they are smaller in size and resources than
the school lunch and breakfast programs.\41\
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\41\ Please note, while operators of NSLP afterschool snack,
SMP, and CACFP are not required to offer a variety of fluid milk to
all participants, operators of the Child Nutrition Programs are
required to provide meal modifications to ensure that participants
with disabilities have an equal opportunity to participate in and
benefit from the programs. This would include providing participants
with a substitute for milk, as needed, due to a disability. See:
Accommodating Disabilities in the School Meal Programs: Guidance and
Q&As, https://www.fns.usda.gov/cn/accommodating-disabilities-school-meal-programs-guidance-qas and Modifications to Accommodate
Disabilities in CACFP and SFSP, https://www.fns.usda.gov/cn/modifications-accommodate-disabilities-cacfp-and-sfsp.
---------------------------------------------------------------------------
It is important to note that offering flavored milk (low-fat and/or
fat-free) is an option, not a requirement, and operators may choose not
to offer flavored milk. For example, the local school wellness policy
provides students, parents and guardians, and interested community
members the opportunity to influence the school nutrition environment
at large (see 7 CFR 210.31). Some individual schools and school
districts have opted to remove all flavored milk from school meal menus
via local wellness policies to reduce students' added sugars
consumption. Schools may also consider placing unflavored milk in
visible locations in the school cafeteria to encourage children to
select it instead of flavored milk.
This final rule also makes a technical correction in SMP and CACFP
regulations to clarify that lactose-free and reduced-lactose fluid milk
meet the SMP and CACFP requirements for fluid milk; no written request
or statement is required for a school, institution, or facility to
offer lactose-free or reduced-lactose fluid milk. This language aligns
with other Program regulations, which state that lactose-free and
reduced-lactose fluid milk may be served to meet the fluid milk
requirement (see 7 CFR 210.10(d)(1)(i) (NSLP) and 220.8(d) (SBP)).
Allowing lactose-free milk is consistent with the Dietary Guidelines.
It also helps to increase access to the nutritional benefits of milk
among populations that are more likely to experience lactose
intolerance.\42\ This
[[Page 6994]]
clarification builds greater consistency in Program regulations and is
expected to reduce confusion for SMP and CACFP operators, as well as
families.
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\42\ According to the National Institute of Diabetes and
Digestive and Kidney Diseases, in the United States, African
Americans, American Indians, Asian Americans, and Hispanics/Latinos
are more likely to have the symptoms of lactose intolerance. Lactose
intolerance is least common among people who are from, or whose
families are from, Europe. Definition & Facts for Lactose
Intolerance. Available at: https://www.niddk.nih.gov/health-information/digestive-diseases/lactose-intolerance/definition-facts.
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Accordingly, this final rule amends 7 CFR 210.10(d)(1)(i);
210.11(m)(1)(ii), (m)(2)(ii) and (m)(3)(ii); 215.7a(a); 220.8(d);
226.20(a)(1)(iii); and 226.20(c)(1), (2), and (3), to allow NSLP and
SBP operators to offer flavored, low-fat milk as part of a reimbursable
meal and for sale as a competitive beverage, and allow flavored, low-
fat milk in the SMP and in the CACFP for participants ages 6 and older.
It also clarifies that lactose-free and reduced-lactose fluid milk meet
the SMP and CACFP requirements for fluid milk. USDA invites public
comments on the milk standards discussed in this final rule. These
public comments will help to inform USDA's future rulemaking.
B. Whole Grain-Rich Standards
As established by the 2012 final rule, current NSLP and SBP
regulations at 7 CFR 210.10(c)(2)(iv) and 220.8(c)(2)(iv) require all
grains offered in school meals to meet the USDA whole grain-rich
criteria. 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. However, successive
legislative and administrative action beginning in 2012 prevented full
implementation of the whole grain-rich requirement. Prior to the
vacatur of the 2018 final rule, in SY 2019-2020, at least 50 percent of
the weekly grains offered in the NSLP and SBP were required to be whole
grain-rich.
The requirement to offer exclusively whole grain-rich products
proved challenging for some school districts. For example, while some
schools have successfully implemented the whole grain-rich requirement,
others have cited student acceptance, higher costs, and a lack of
available products as barriers to meeting the requirement.\43\ As
noted, in SY 2014-2015, only 27 percent of NSLP menus were offering 100
percent of grains as whole grain-rich.\44\ Due to a long history of
administrative and legislative actions allowing exemptions, this
requirement was never fully implemented nationwide. Seeking to assist
schools, USDA allowed enriched pasta exemptions for SY 2014-2015 and SY
2015-2016, and Congress expanded the pasta flexibility to include other
grain products. Through successive legislative action, Congress
directed USDA to allow State agencies to grant individual whole grain-
rich exemptions (Section 751 of the Consolidated and Further Continuing
Appropriations Act, 2015 (Pub. L. 113-235); and Section 733 of the
Consolidated Appropriations Act, 2016 (Pub. L. 114-113). In addition,
Section 747 of the Consolidated Appropriations Act, 2017 (Pub. L. 115-
31) (2017 Appropriations Act) provided flexibilities related to whole
grains for SY 2017-2018. More recently, Section 101(a)(1) of Division D
of the Continuing Appropriations Act, 2018 and Supplemental
Appropriations for Disaster Relief Requirements Act, 2017 (Pub. L. 115-
56), enacted September 8, 2017, extended the flexibilities provided by
Section 747 of the Consolidated Appropriations Act, 2017 through
December 8, 2017. The 2017 Appropriations Act provided authority for
whole grain-rich exemptions through the end of SY 2017-2018, and the
interim final rule (82 FR 56703, November 30, 2017) extended the
availability of exemptions through SY 2018-2019.
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\43\ U.S. Department of Agriculture, Food and Nutrition Service,
Office of Policy Support, Child Nutrition Program Operations Study
(CN-OPS-II): SY 2016-17. Beyler, Nick, Jim Murdoch, and Charlotte
Cabili. Project Officer: Holly Figueroa. Alexandria, VA: June 2021.
Available at: https://fns-prod.azureedge.net/sites/default/files/resource-files/CNOPS-II-SY2016-17.pdf.
\44\ See: ``All Grains are Whole Grain Rich: Percentage Meeting
Requirement'' in Table C.14 of 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://fns-prod.azureedge.net/sites/default/files/resource-files/SNMCS-Volume2.pdf. (OMB Control Number 0584-0596, expiration
date 07/31/2017.) Note: In SY 2014-2015, the most recent school year
that USDA data is available, all grains were supposed to be whole
grain-rich. However, State agencies had the option of granting
exemptions to this requirement if an SFA demonstrated hardship in
procuring compliant whole grain-rich products that were acceptable
to students.
---------------------------------------------------------------------------
For SY 2017-2018, a total of 4,297 SFAs (about 23 percent of SFAs
operating the school meal programs) submitted whole grain-rich
exemption requests for specific products based on hardship, and nearly
all (4,124) received exemption approval from their State agency. In
addition, during the pandemic, USDA permitted schools to operate SFSP
at the end of SY 2019-2020 and in SY 2020-2021; the SFSP meal standards
do not include a whole grain-rich requirement. USDA also provided
nationwide meal pattern waivers through SY 2021-2022, which allowed
SFAs to request flexibility for the whole grain-rich requirements on a
case-by-case basis.
2020 Proposed Rule and Public Comments
In the 2020 proposed rule, USDA proposed to require that at least
half of the weekly grains offered in the NSLP and SBP meet the whole
grain-rich criteria specified in USDA guidance, and that the remaining
grain items offered must be enriched. In response to the 2020 proposed
rule, USDA received 4,710 comments regarding the whole grain-rich
standard. The following table shows tallies of the total and unique
comments received in response to the proposed whole grain-rich
standard:
2020 Proposed Whole Grain-Rich Standard
----------------------------------------------------------------------------------------------------------------
Total whole
grain-rich Percent of Unique whole Percent of
Respondent position comments total whole grain-rich unique whole
(including form grain-rich comments grain-rich
letters) comments comments
----------------------------------------------------------------------------------------------------------------
Support........................................ 112 2 108 70
Mixed.......................................... 6 https://www.federalregister.gov/documents/2020/11/25/2020-25761/restoration-of-milk-whole-grains-and-sodium-flexibilities#footnote-41-p75252.
See also: ``All Grains are Whole Grain Rich: Percentage Meeting
Requirement and Percentage Below Requirement'' in Tables C.14 and
E.14 of 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://fns-prod.azureedge.net/sites/default/files/resource-files/SNMCS-Volume2.pdf. (OMB Control Number 0584-0596, expiration date 07/31/
2017.)
---------------------------------------------------------------------------
The current Dietary Guidelines recommend that at least half of
total grains consumed should be whole grains. The Dietary Guidelines
also note that while school-age children, on average, meet the
recommended intake of total grains, they do not meet the recommendation
to make half of their grains whole grains. With this final rule, USDA
is continuing to advance the important progress made in improving
school nutrition standards. Compared to the nutrition requirements that
were in effect prior to COVID-19, this transitional rule provides
meaningful, achievable improvements in the whole grain-rich standard,
while continuing to be responsive to the current needs of schools. The
80 percent requirement is consistent with and based on the Dietary
Guidelines, 2020-2025 recommendation regarding consumption of more
whole grains and is intended to be a transitional threshold as USDA
works to enhance the meal pattern standards in a way that reflects the
latest nutrition science.\46\
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\46\ As noted by the court in CSPI, the statutory language
requiring that meals be ``consistent with'' Dietary Guidelines and
that regulatory meal pattern standards be ``based on'' the Dietary
Guidelines (see 42 U.S.C. 1758(f)(1)(A) and (a)(4)(B)) is
sufficiently general to allow for meal pattern standards that use
the Dietary Guidelines as a starting point and align with general
recommended goals, rather than exactly replicating specific
quantitative standards. See 438 F. Supp. 3d at 562-63.
---------------------------------------------------------------------------
The requirement that at least 80 percent of the weekly grains
offered in the NSLP and SBP are whole grain-rich is a minimum standard,
not a maximum. It reflects a practical and feasible way to work towards
the Dietary Guidelines' emphasis on increasing whole grain consumption
as USDA considers further changes in a future rulemaking. Requiring at
least 80 percent--as opposed to the proposed 50 percent--of the weekly
grains offered in the NSLP and SBP to be whole grain-rich is a standard
that many schools were able to accomplish prior to the COVID-19
pandemic. This achievable, transitional standard gives schools the
ability to plan healthy meals that reflect regional and cultural
student preferences and allows the food industry time to develop more
whole grain-rich products that students find acceptable. A 2021 survey
of school nutrition directors found that 49 percent of respondents
considered product or ingredient availability to be a significant
challenge in meeting the whole grain-rich requirement. Another 44
percent of respondents considered product or ingredient availability to
be a moderate challenge.\47\ This is consistent with USDA research that
found that 45 percent of SFA respondents identified lack of available
products as a challenge to meeting the whole grain-rich requirement.
SFAs also identified purchasing whole grain-rich products as the top
strategy to meet this requirement, suggesting that product availability
is key to success in meeting the whole grain-rich standard.\48\
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\47\ School Nutrition Association. Back to School 2021 Report: A
Summary of Survey Results. Available at: https://schoolnutrition.org/uploadedFiles/News_and_Publications/Press_Releases/Press_Releases/Back-to-School-Report-2021.pdf.
\48\ U.S. Department of Agriculture, Food and Nutrition Service,
Office of Policy Support, Child Nutrition Program Operations Study
(CN-OPS-II): SY 2016-17. Beyler, Nick, Jim Murdoch, and Charlotte
Cabili. Project Officer: Holly Figueroa. Alexandria, VA: June 2021.
Available at: https://fns-prod.azureedge.net/sites/default/files/resource-files/CNOPS-II-SY2016-17.pdf.
---------------------------------------------------------------------------
Schools already offering all grains as whole grain-rich do not have
to change their menus as a result of this final rule and are encouraged
to continue exceeding the minimum regulatory standard. For other
schools, 7 CFR 210.12(a) allows students, parents and guardians, and
community members to influence menu planning at the local level; USDA
encourages the school community to provide ideas on how to incorporate
more whole grain-rich products in the breakfast and lunch menus at
their local school. USDA appreciates comments that suggested allowing
exceptions or waivers to the whole grain-rich requirement on an as-
needed basis; however, USDA's waiver authority under the National
School Lunch Act does not allow the Secretary to issue individual or
statewide waivers related to the meal pattern requirements. Therefore,
USDA does not have the authority to waive the whole grain-rich
requirement on an as-needed basis.\49\
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\49\ Temporary authority provided by Congress has permitted USDA
to issue whole grain-rich exemptions or meal pattern waivers in the
past; for example, in response to the COVID-19 public health
emergency. However, USDA does not have the authority to issue these
waivers without Congressional intervention.
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Studies have demonstrated the importance of school meals in
improving children's overall diets, including their whole grain
consumption.\50\ \51\ Whole grains are a
[[Page 6997]]
good source of dietary fiber, and consumption of whole grains is
associated with reduced risk of cardiovascular disease, type 2
diabetes, and certain cancers. In acknowledgement of the health
benefits of whole grains, USDA encourages schools to incorporate whole
grain-rich products in their menus as often as possible, especially in
popular foods such as pizza or sandwich rolls. USDA will continue to
provide training and technical assistance to assist in these efforts.
In addition, USDA Foods will continue to make whole grain-rich products
available to schools. For example, whole grain-rich USDA Foods
available to schools for SY 2021-2022 included flour, rolled oats,
pancakes, tortillas, and several varieties of pasta and rice.
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\50\ Biing-Hwan Lin, Joanne F. Guthrie, Travis A. Smith, Dietary
Guidance and New School Meal Standards: Schoolchildren's Whole Grain
Consumption Over 1994-2014, American Journal of Preventive Medicine,
Volume 57, Issue 1, July 2019. Available at: http://www.sciencedirect.com/science/article/pii/S0749379719300546.
\51\ Aune D, Keum N, Giovannucci E, Fadnes LT, Boffetta P,
Greenwood DC, Tonstad S, Vatten LJ, Riboli E, Norat T. Whole grain
consumption and risk of cardiovascular disease, cancer, and all
cause and cause specific mortality: systematic review and dose-
response meta-analysis of prospective studies. BMJ. June 2016.
Available at: https://pubmed.ncbi.nlm.nih.gov/27301975/.
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Accordingly, this final rule amends 7 CFR 210.10(c)(2)(iv)(B) and
220.8(c)(2)(iv)(B), to require that at least 80 percent of the weekly
grains offered in the NSLP and SBP meet the whole grain-rich criteria
specified in USDA guidance. USDA invites public comments on the whole
grain-rich standards discussed in this final rule. These public
comments will help inform USDA's future rulemaking.
C. Sodium Standards
To avoid excessive sodium intake in school meals, the 2012 final
rule established sodium target limits at 7 CFR 210.10(f)(3) and
220.8(f). These targets were developed through a review of scientific
literature; consultation with public health professionals, industry,
and other entities involved in sodium reduction efforts; and
recommendations from the National Academy of Medicine (formerly the
Institute of Medicine). Based on this research, the 2012 final rule
included three transitional targets to gradually reduce sodium intake
over a 10-year period. The initial target, Sodium Target 1 for NSLP,
was determined as a 10 percent reduction from the average sodium
content offered for lunch in SY 2004-2005.\52\ Similarly, Sodium Target
1 for SBP was determined as a 5 percent reduction from the average
sodium content offered for breakfast. The Final Sodium Target was
developed using the 2005 Tolerable Upper Intake Levels (UL) for sodium
in the Dietary Reference Intakes (DRI) for each age group at the
current time. The Final Sodium Target would require significant efforts
by the food industry to reformulate and develop new products lower in
sodium. Sodium Target 2 represented an intermediate target achievable
with product reformulations using technology available to industry when
the 2012 rule was under development.
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\52\ Institute of Medicine (IOM 2010). School Meals: Building
Blocks for Healthy Children. Washington, DC: The National Academies
Press. Available at: https://fns-prod.azureedge.net/sites/default/files/SchoolMealsIOM.pdf.
---------------------------------------------------------------------------
Prior to the vacatur of the 2018 final rule, successive legislative
and administrative action delayed implementation of the sodium
reduction targets. At the time of the court vacatur, schools were
required to meet Sodium Target 1; with the court vacatur, Sodium Target
2 immediately went into effect. However, during the pandemic, USDA
permitted schools to operate SFSP, which does not have a sodium limit,
at the end of SY 2019-2020 and in SY 2020-2021. USDA also provided
nationwide targeted meal pattern waivers through SY 2021-2022, which
allowed SFAs to serve meals that did not meet the sodium targets,
throughout that period. As a result, schools have never had to
implement Sodium Target 2.
2020 Proposed Rule and Public Comments
The 2020 proposed rule sought to maintain Sodium Target 1
requirements through SY 2023-2024 (June 30, 2024); to delay required
compliance with Target 2 requirements to SY 2024-2025 (July 1, 2024);
and to remove the Final Target. In response to the 2020 proposed rule,
USDA received 4,710 comments regarding the sodium standards. The
following table shows tallies of the total and unique comments received
in response to the proposed sodium standards:
2020 Proposed Sodium Standards
----------------------------------------------------------------------------------------------------------------
Total sodium
comments Percent of Unique sodium Percent of
Respondent position (including total sodium comments unique sodium
form letters) comments comments
----------------------------------------------------------------------------------------------------------------
Support......................................... 94 2 90 58
Mixed........................................... 34 www.fda.gov/SodiumReduction.
\55\ U.S. Food and Drug Administration: Voluntary Sodium
Reduction Goals: Target Mean and Upper Bound Concentrations for
Sodium in Commercially Processed, Packaged, and Prepared Foods.
October 2021. Available at: www.fda.gov/SodiumReduction.
\56\ U.S. Food and Drug Administration: To Improve Nutrition and
Reduce the Burden of Disease, FDA Issues Food Industry Guidance for
Voluntarily Reducing Sodium in Processed and Packaged Foods.
Available at: https://www.fda.gov/news-events/press-announcements/improve-nutrition-and-reduce-burden-disease-fda-issues-food-industry-guidance-voluntarily-reducing.
---------------------------------------------------------------------------
USDA considered FDA's sodium reduction guidance in the context of
the school meal standards, which include dietary specifications for
specific age/grade groups. USDA also relied on the Dietary Guidelines,
2020-2025 and the 2009 National Academy of Medicine report, which
informed the sodium targets in the 2012 rule. USDA also considered the
timeframe for FDA's voluntary short-term sodium reduction targets, as
noted above. When examining the daily sodium allocation attributed to
each meal, USDA determined that sodium reductions are most needed at
lunch. Therefore, USDA is maintaining Sodium Target 1 for breakfast
during the two-year timeframe of this transitional rule, which will
allow schools to focus their sodium reduction efforts on school lunch.
Noting some commenters' concerns with the palatability of lower sodium
school meals and to establish feasible sodium reductions in school
lunches, USDA set the near-term (Target 1A) reduction at 10 percent,
which also aligns with research indicating gradual sodium reductions
are less noticeable to consumers.\57\
---------------------------------------------------------------------------
\57\ Institute of Medicine 2010. Strategies to Reduce Sodium
Intake in the United States. Washington, DC: The National Academies
Press. https://doi.org/10.17226/12818.
---------------------------------------------------------------------------
On average, under Sodium Target 1A, daily sodium amounts for school
lunch will be reduced as follows:
Grades K-5: 120 mg reduction ( Grades 6-8: 135 mg reduction ( Grades 9-12: 140 mg reduction (DietaryGuidelines.gov.
---------------------------------------------------------------------------
USDA acknowledges that sodium targets must be achievable for most
schools based on product availability, and must allow schools to plan
appealing meals that encourage consumption and intake of key nutrients
that are essential for children's growth and development. This final
rule responds to school food professionals, who are concerned about
their ability to procure foods that comply with Sodium Target 2 and the
Final Sodium Target in the near-term. A 2021 survey of school nutrition
directors found that 62 percent of respondents considered product or
ingredient availability to be a significant challenge in meeting Sodium
Target 2, and 75 percent considered it to be a significant challenge in
meeting the Final Sodium Target. Respondents also expressed concern
about sodium levels in specific foods and products. For example, when
citing challenges in meeting Sodium Target 2, 55 percent of respondents
described naturally occurring sodium in foods such as milk, low-fat
cheese, and meat as a significant challenge, and 64 percent considered
sodium levels in condiments to be a significant challenge.\59\ A USDA
study found that 70 percent of SFAs planned to purchase lower sodium
products in order to meet sodium standards, suggesting availability of
products is an important factor in their ability to meet the
standards.\60\
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\59\ School Nutrition Association. Back to School 2021 Report: A
Summary of Survey Results. Available at: https://schoolnutrition.org/uploadedFiles/News_and_Publications/Press_Releases/Press_Releases/Back-to-School-Report-2021.pdf.
\60\ U.S. Department of Agriculture, Food and Nutrition Service,
Office of Policy Support, Child Nutrition Program Operations Study
(CN-OPS-II): SY 2016-17. Beyler, Nick, Jim Murdoch, and Charlotte
Cabili. Project Officer: Holly Figueroa. Alexandria, VA: June 2021.
Available at: https://fns-prod.azureedge.net/sites/default/files/resource-files/CNOPS-II-SY2016-17.pdf.
---------------------------------------------------------------------------
Looking ahead, USDA recognizes the need for further sodium
reduction. The changes in this final rule, which are intended as
transitional standards, will encourage the re-introduction of lower
sodium foods and meals to students, and give the food industry
additional time to develop and test lower sodium products that are
palatable to students. It will allow more time for school food
professionals to engage in student taste tests, which help SFAs to make
informed decisions regarding well-accepted food products. A USDA study
found that obtaining feedback from students via taste testing was the
most often-employed strategy for product selection and recipe
refinement, according to SFAs.\61\ Further, about three-quarters of
school food service directors reported that gaining student acceptance
of the meal pattern standards was moderately to extremely challenging
with respect to maintaining student participation; this makes
additional time for recipe refinement important.\62\
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\61\ Successful Approaches to Reduce Sodium in School Meals.
Available at: https://fns-prod.azureedge.net/sites/default/files/resource-files/Approaches-ReduceSodium-Volume2.pdf.
\62\ U.S. Department of Agriculture, Food and Nutrition Service,
Office of Policy Support, Child Nutrition Program Operations Study
(CN-OPS-II): SY 2016-17. Beyler, Nick, Jim Murdoch, and Charlotte
Cabili. Project Officer: Holly Figueroa. Alexandria, VA: June 2021.
---------------------------------------------------------------------------
These transitional standards are especially needed after COVID-19
operations when many schools were offering grab-and-go meals that
included processed, individually wrapped food products to ensure the
safe distribution of food to children. Additionally, limited staffing,
which made it harder to cook meals from scratch, likely contributed to
increased sodium levels during SY 2020-2021 and SY 2021-2022 compared
to just prior to the pandemic. A 2021 survey of school nutrition
directors found that 47 percent of respondents considered scratch
cooking limitations (e.g., staffing, infrastructure, schedule) to be a
significant challenge in working towards meeting Sodium Target 2, and
58 percent considered it to be a significant challenge in working
towards meeting the Final Sodium Target. USDA recognizes that response
and eventual recovery from the effects of the pandemic will take time;
SFAs continue to face many challenges that impact the school meal
service, including increased food costs, supply chain disruptions,
labor shortages, and transportation issues.
USDA is committed to supporting long-term sodium reduction, which
is consistent with the goals of the Dietary Guidelines, 2020-2025 and
Healthy People 2030 \63\ and critical to the healthy development of our
Nation's children. As noted, this rule does not implement Sodium Target
2 or the Final Sodium Target for the near-term because this rule
represents transitional standards which meaningfully move nutritional
standards forward as part of an overall process--which will include
further notice-and-comment rulemaking--to continually enhance
nutritional security of the school meal programs. However, immediate
implementation of significant sodium reduction could potentially lower
student acceptance of school meals. Currently, students may be
accustomed to eating higher-sodium foods outside of school, and
potentially, higher-sodium school meals that may have been served
during pandemic operations. Extending Sodium Target 1 and instituting
Sodium Interim Target 1A for the NSLP is important for practical
reasons. Setting a more practicable approach to sodium reduction allows
more time for product reformulation, school menu adjustments, recipe
development, personnel training, and changes in student preferences; as
noted by comments, these factors are important to successful
implementation of further sodium reduction in school meals.
---------------------------------------------------------------------------
\63\ U.S. Department of Health and Human Services. Nutrition and
Healthy Eating. Available at: https://health.gov/healthypeople/objectives-and-data/browse-objectives/nutrition-and-healthy-eating.
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The Dietary Guidelines note that taste preferences for salty foods
may be established early in life, and that early food preferences can
influence later food choices.\64\ However, palates can
[[Page 7001]]
also adjust to lower sodium foods.\65\ Because the preference for salty
foods is a learned preference, the transitional standards in this final
rule provide additional time for the overall food marketplace and
community public health messaging to take steps to also reduce sodium
in the food supply, while encouraging moderate reductions in school
lunches. Allowing sodium reduction in schools to be on pace with
community sodium reduction strategies, and implementation of the FDA's
voluntary short-term sodium reduction targets, will yield a higher
likelihood of success. This approach also will allow the opportunity
for input from key stakeholders on how sodium reduction in schools can
be coordinated with a larger public health effort and with industry
research and development, so that children's preference for sodium in
foods can gradually change without noticeable changes to the
palatability of school meals. In addition, this final rule will provide
USDA with additional time to thoughtfully propose a new rule that
offers a permanent, achievable reduction in sodium in school meals that
continues to be consistent with the goals of the Dietary Guidelines.
---------------------------------------------------------------------------
\64\ 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.
\65\ IOM (Institute of Medicine). Strategies to Reduce Sodium
Intake in the United States. Washington, DC The National Academies
Press; 2010.
---------------------------------------------------------------------------
USDA appreciates that, since 2012, schools have made significant
progress in reducing the sodium content of meals. A study published in
2020 \66\ provides evidence that schools have the ability to provide
lower sodium meals that are acceptable to students and do not increase
food waste. The study also notes that 9 in 10 children in the United
States consume sodium at levels that exceed Dietary Guidelines and
National Academy of Medicine (formerly the Institute of Medicine)
recommendations, and that 1 in 6 children have pre-high blood pressure
or high blood pressure, putting them at risk for cardiovascular disease
as adults. Because of these health risks, it is important for schools
that have the ability to reduce the sodium content of meals to do so.
Further, USDA encourages families and communities to support schools'
efforts by taking gradual steps to reduce the sodium content of meals
offered to children outside of schools when possible. Wholesome school
meals are only a part of children's daily food intake, and children
will be more likely to eat them if the foods available to them outside
of school are also lower in sodium. Helping students adjust their taste
preferences requires collaboration between schools, parents and
guardians, and communities.
---------------------------------------------------------------------------
\66\ Juliana F.W. Cohen, Scott Richardson, Christina A. Roberto,
Eric B. Rimm, Availability of Lower-Sodium School Lunches and the
Association with Selection and Consumption among Elementary and
Middle School Students, Journal of the Academy of Nutrition and
Dietetics, 2020. Available at: http://www.sciencedirect.com/science/article/pii/S2212267220309710.
---------------------------------------------------------------------------
USDA's Team Nutrition and the Institute of Child Nutrition have
developed a range of resources and tools for reducing sodium; USDA will
continue to provide schools with technical assistance, training
resources, recipes, and mentoring to help them offer healthy, lower
sodium meals. To support schools, USDA will engage public health
organizations to collaborate on messages to educate families and
communities about the need for sodium reduction in school meals.
Further, USDA will gather feedback on how sodium reduction impacts
schools' ability to offer foods from a variety of cultures and regions
to avoid negatively impacting the diversity of school meal menus. In
addition, USDA Foods will continue to provide food products with no
added salt and/or low sodium content for inclusion in school meals. As
noted previously, at the local level, 7 CFR 210.12(a) allows students,
parents and guardians, and community members to influence menu
planning; USDA encourages the school community to provide ideas on
sodium reduction strategies. USDA also encourages schools to
communicate the importance of reducing sodium in school meals, for
example, by sharing nutrition education messages with students in the
school cafeteria.
Accordingly, this final rule amends 7 CFR 210.10(f)(3) and 220.8(f)
to maintain Sodium Target 1 for NSLP and SBP through SY 2022-2023, as
well as for SBP in SY 2023-2024, and implement Sodium Target 1A for
NSLP no later than SY 2023-2024. USDA invites public comments on the
USDA sodium standards discussed in this final rule, including comments
about how USDA can support implementation of those sodium standards.
These public comments will help to inform USDA's future rulemaking.
IV. Good Cause
While USDA has extensively considered public comments on this final
rule, USDA would have good cause to issue this rule even without
soliciting public comment.
USDA believes that good cause exists to implement these
transitional standards as an interim final rule due to the immediate
need of school operators to begin procurement activities for school
meal programs. Since March 2020, USDA and Child Nutrition Program
operators have worked tirelessly to ensure children's access to
nutritious meals throughout the pandemic, safe reopening of schools,
and steps towards resumption of traditional meal service. Most
resources have been devoted to such efforts and as explained above, the
2012 standards were not applicable during such period due to COVID-
related flexibilities granted by Congress. However, Congress recently
revised such flexibilities to end after SY 2021-2022. See Section
3102(a) of the Extending Government Funding and Delivering Emergency
Assistance Act (Pub. L. 117-43) (amending Section 2202(e) of the
Families First Coronavirus Response Act).
In addition, many SFAs plan school menus months in advance of the
new school year. For SFAs to make menu planning, procurement, and
contract decisions in advance of the school year, they need advance
notice of the meal pattern requirements. As shown in the chart below,
due to the numerous steps involved, the ICN estimates that the entire
procurement process may take up to a year to complete.
Procurement Timeline for School Food Service Operators
------------------------------------------------------------------------
Month(s) Task(s)
------------------------------------------------------------------------
August-September............. Begin preparing for procuring
items. Planning approximately one year
in advance provides sufficient time for
preparation for all parties in the food
chain.
October-December............. Write specifications.
Project USDA Foods needs.
Fall and winter breaks may
impact timeline.
[[Page 7002]]
January...................... Develop solicitation document.
Include pertinent information about the
district; date and time for pre-
solicitation conference and solicitation
submission; scope of work; time period
for the solicitation; any common
legalities; ability for price
escalations; name brand items;
substitutions; discounts, rebates, and
applicable credits; communication
instructions with the district prior to
the closing date; solicitation
evaluation criteria.
Plan accordingly to have
solicitation document and agenda item at
school board meeting.
Modify proposal based on legal
counsel's directives. Remember fall and
winter breaks may impact the timeline.
February-March............... Propose solicitation document to
school board.
Follow internal procedures.
Communicate to distributors and
manufacturer and publicly announce the
solicitation.
Publicize the solicitation
document.
Conduct the solicitation
meeting.
Allow a minimum of four weeks
for vendors to respond.
Evaluate solicitations based on
pre-established criteria and select
vendors.
April-May.................... Receive School Board approval
for the selection of vendor.
Provide information to
distributor and/or manufacturer.
Allow longer time for specialty
items and name brand items.
June......................... Communicate with stakeholders,
determine delivery dates, and discuss
school opening logistics.
July-August.................. Receive products for upcoming
school year.
------------------------------------------------------------------------
Planning and acting in advance saves time, helps avoid repetitive
tasks, and implements cost-effective inventory management, according to
the ICN. Once menu planning is complete, schools need lead time to
screen products, forecast required food quantities, write product
specifications, create solicitation documents, announce the
solicitation, and award the contract for the next school year. This
final rule is necessary and timely, because for schools to successfully
plan and adequately prepare for SY 2022-2023, they need to know the
meal pattern requirements immediately. Planning and preparing for the
new school year is important not only from an administrative
standpoint; it also allows school nutrition professionals to better
serve the children who rely on school breakfast and lunch for up to
half their dietary intake each school day.\67\ Supporting schools'
ability to plan ahead is especially important at a time when schools
are still facing pandemic-related concerns, such as supply chain
disruptions, staff shortages, and financial losses.\68\ Importantly, if
schools do not have sufficient time to procure foods that comply with
the meal pattern standards, they may choose not to participate in the
programs or, if they do participate, may be found noncompliant and,
depending on the meal pattern violation, ineligible for reimbursement.
---------------------------------------------------------------------------
\67\ 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.
\68\ School Nutrition Association. Back to School 2021 Report: A
Summary of Survey Results. Available at: https://schoolnutrition.org/uploadedFiles/News_and_Publications/Press_Releases/Press_Releases/Back-to-School-Report-2021.pdf.
Continued pandemic-related supply chain disruptions, staff,
shortages, and financial sustainability/losses were identified as
the top three ``serious concerns'' among survey respondents.
---------------------------------------------------------------------------
V. Summary
In 2012, USDA published a final rule that raised school meal
nutrition standards for the first time in more than 15 years. The
updated meal patterns were a key component of implementing the Healthy,
Hunger-Free Kids Act, which significantly enhanced school meal
standards to meet the nutritional needs of children and to safeguard
their health and well-being. Most elements of the 2012 regulations have
been successfully implemented with measurable, positive effect.\69\
Under the updated standards, USDA research found that school lunches
were more nutritious compared to lunches from home or other places. For
example, students who ate school lunches were more than twice as likely
to consume vegetables at lunch compared to students who ate lunches
from home or other sources.\70\ USDA also found that a majority of SFA
directors agreed that the updated standards were helpful in decreasing
sodium, increasing dark green and red/orange vegetables, meeting
calorie requirements, and increasing whole grains in school meals.\71\
---------------------------------------------------------------------------
\69\ School Nutrition and Meal Cost Study findings suggest that
the updated nutrition standards have had a positive and significant
influence on the nutritional quality of school meals. Between SY
2009-2010 and SY 2014-2015, ``Healthy Eating Index-2010'' (HEI)
scores for NSLP and SBP increased significantly, suggesting that the
updated standards significantly improved the nutritional quality of
school meals. Over this period, the mean HEI score for NSLP lunches
increased from 57.9 to 81.5, and the mean HEI score for SBP
breakfasts increased from 49.6 to 71.3. The study is available at:
https://www.fns.usda.gov/school-nutrition-and-meal-cost-study.
School Nutrition and Meal Cost Study (OMB Control Number 0584-0596,
expiration date 07/31/2017.)
\70\ Lunches Consumed From School Are the Most Nutritious.
Available at: https://fns-prod.azureedge.net/sites/default/files/resource-files/SNMCS_infographic5_SchoolLunchesAretheMostNutritious.pdf.
\71\ Updated Nutrition Standards Posed Challenges but Achieved
Underlying Goals. Available at: https://fns-prod.azureedge.net/sites/default/files/resource-files/SNMCS_infographic1_ChallengeswithNutritionStandards.pdf.
---------------------------------------------------------------------------
Yet, for several years after publication of the 2012 rule,
administrative and legislative action provided flexibility to the milk,
whole grains, and sodium requirements. In 2018, USDA published a final
rule to revise the requirements for milk, whole grains, and sodium. In
April 2020, due to a court decision vacating the 2018 rule, the meal
pattern requirements for milk, whole grains, and sodium immediately
reverted to the 2012 regulations.
Nevertheless, nationwide meal pattern waivers provided flexibility
to allow safe meal service during the COVID-19 pandemic, so the court
decision had little practical effect on schools at the time. These
waivers will expire on June 30, 2022. However, many schools are not
ready to immediately serve meals that meet the milk, whole grains, and
sodium requirements from the 2012 rule. Reverting to these
requirements, some of which have never been fully in effect,
immediately after the waivers expire would be unrealistic and impose
unreasonable difficulties on
[[Page 7003]]
schools, undermining their ability to comply with Program requirements.
Additionally, schools need more time to respond to and recover from the
economic and transformational impacts of meal service during the
pandemic.
Considering the comments received on the November 2020 proposed
rule, circumstances affecting schools, and the current Dietary
Guidelines, USDA is finalizing the November 2020 proposed rule with
standards targeting three meal requirements for the near-term, which
will provide schools with a measured transition to healthier meals. The
transitional standards offered in this final rule apply only to the
milk, whole grains, and sodium requirements. This final rule will allow
NSLP and SBP operators, and some CACFP and SMP operators, to offer
flavored, low-fat milk; require at least 80 percent of the weekly
grains in the school lunch and breakfast menus to be whole grain-rich;
and retain Sodium Target 1 for NSLP and SBP through the end of SY 2022-
2023, as well as for SBP beginning in SY 2023-2024, and make a Sodium
Interim Target 1A effective for NSLP beginning in SY 2023-2024.
Schools that can meet or exceed these standards do not have to
change their menus because of this final rule, and are encouraged to
continue exceeding the regulatory standard to provide students with the
healthiest meals possible. At the local level, 7 CFR 210.12(a) allows
students, parents and guardians, and community members to influence
menu planning. The local school wellness policy (7 CFR 210.31) also
provides an important opportunity to influence the school nutrition
environment at large; USDA encourages community members to support
their local school's efforts to provide students with nutritious school
meals. In addition, 7 CFR 210.19(e) allows State agencies discretion to
set additional requirements that are not inconsistent with the minimum
nutrition standards for school meals.
Looking ahead, USDA will promulgate a new rulemaking regarding
nutritional requirements for school meals that comprehensively
considers the goals of the Dietary Guidelines, 2020-2025, recent
nutrition science, and the needs of children who may experience food
and nutrition insecurity. USDA also commits to providing stakeholders
with a meaningful opportunity to offer comments on a new proposed rule
and will fully consider all comments. USDA intends to propose and
finalize a new rule that demonstrates the Department's commitment to
nutrition to be effective by SY 2024-2025.
Meanwhile, USDA will continue to provide schools with technical
assistance, training resources, and mentoring to help them offer
nutritious meals that students enjoy. In addition, USDA Foods will
continue to provide whole grain-rich products and products with no
added salt and/or low sodium content for inclusion in school meals.
USDA invites the public to comment on the content of this final rule,
as well as provide comments that will inform the future rulemaking that
will offer the next steps towards better nutrition for America's school
children.
Procedural Matters
Executive Order 12866 and 13563
Executive Orders 12866 and 13563 direct agencies to assess all
costs and benefits of available regulatory 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 equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility. This final rule has been determined to be economically
significant and was reviewed by the Office of Management and Budget
(OMB) in conformance with Executive Order 12866.
Regulatory Impact Analysis
As required for all rules that have been designated as Significant
by the Office of Management and Budget, a Regulatory Impact Analysis
(RIA) was developed for this final rule. It follows this rule as an
Appendix. The following summarizes the conclusions of the regulatory
impact analysis:
Need for Action: This final rule will establish transitional
standards to support the continued provision of nutritious school meals
while USDA updates the meal pattern standards to reflect the Dietary
Guidelines for Americans, 2020-2025, and as schools recover from the
pandemic. USDA will develop updated standards through a new rulemaking
for implementation in school year (SY) 2024-2025 and beyond, based on
current nutrition science and public input on how to build on the
success of school meals in supporting healthy eating and improved
dietary outcomes. The COVID-19 pandemic impacted the entire Nation, but
schools faced challenges adjusting to widespread closures, online and
hybrid learning, and supply chain issues that affected the school meal
service and the broader school environment. Many operators will need to
reacquaint themselves with the 2012 standards after several years of
Congressional, regulatory, and administrative interventions, followed
by two years of meal pattern flexibilities provided in response to the
public health emergency. As a result of these interventions and COVID-
19 nationwide waivers, the 2012 whole grain-rich requirement and Sodium
Target 2 have not been fully implemented, and the 2012 milk
requirements have not been fully implemented in over five years. This
final rule establishes transitional requirements for milk whole grains,
and sodium to respond to the needs of schools as they recover from the
challenges of COVID-19, while also taking measured steps towards
improving nutritional quality of meals offered.
Benefits: This rule builds on the major achievements schools have
already made improving school meals to support healthy diets for school
children. Schools would face extreme challenges immediately returning
to the 2012 standards from COVID-19 operations, which would be
compounded by supply chain disruptions and staffing concerns. This rule
will implement a modified Sodium Target 1A for NSLP, which will support
schools with a gradual transition to lower sodium meals. USDA also
increased the percentage of whole grain-rich offerings required from 50
percent in the proposed rule to 80 percent in this final rule to
recognize the need to continued progress in school meal nutrition. This
rule provides achievable standards while USDA engages in more
comprehensive long-term rulemaking to further update the meal
standards.
Costs: USDA estimates this final rule will save schools $0.15 cent
per meal or $1.1 billion annually compared to directly moving to the
2012 standards for milk, whole grains, and sodium in SY 2022-2023.
Absent this rule it is estimated to cost $1.3 billion annually or $0.18
per meal for schools to move immediately to the 2012 milk, whole
grains, and sodium requirements. The increased costs to schools under
the 2012 standards are primarily due to the requirement to procure
entirely whole grain-rich offerings, which are estimated to be more
expensive than enriched items, and the stricter sodium standards, which
require additional food and labor costs to support scratch cooking as
industry currently does not offer enough compliant products. Relative
to current school year operations, this rule is estimated to
[[Page 7004]]
potentially increase costs to schools by $187 million annually or about
$0.03 per meal. These are mostly driven by the move to the requirement
that at least 80 percent of grains offered must be whole grain-rich and
increases in food and labor costs for schools that still need to meet
Sodium Target 1 and Target 1A. Costs to offer low-fat, flavored milk as
an option are due to low-fat, flavored milk being slightly more
expensive than fat-free, flavored varieties.
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 impacts on a
substantial number of small entities. Pursuant to that review, it has
been certified that this rule would not have a significant impact on a
substantial number of small entities. Because this interim final rule
adds flexibility to current Child Nutrition Program regulations, the
changes implemented through this final rule are expected to benefit
small entities operating meal programs under 7 CFR parts 210, 215, 220,
and 226.
Congressional Review Act
Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.),
the Office of Information and Regulatory Affairs designated this rule
as a major rule, as defined by 5 U.S.C. 804(2).
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 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 http://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 final rule does not contain Federal mandates (under the
regulatory provisions of Title II of the UMRA) for State, local and
Tribal governments, or the private sector of $146 million or more in
any one year. Thus, the rule is not subject to the requirements of
sections 202 and 205 of the UMRA.
Executive Order 12372
The NSLP, SMP, SBP, and the CACFP are listed in the Catalog of
Federal Domestic Assistance under NSLP No. 10.555, SMP No. 10.556, SBP
No. 10.553, 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. The
Department has considered the impact of this final rule on State and
local governments and has determined that this rule does not have
federalism implications. Therefore, under section 6(b) of the Executive
Order, a federalism summary is not required.
Executive Order 12988, Civil Justice Reform
This final 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 is not intended to have
retroactive effect. Prior to any judicial challenge to the provisions
of the interim final rule, all applicable administrative procedures
must be exhausted.
Civil Rights Impact Analysis
FNS has reviewed the final rule, in accordance with Department
Regulation 4300-004, Civil Rights Impact Analysis, to identify and
address any major civil rights impacts the final rule might have on
minorities, women, and persons with disabilities. A comprehensive Civil
Rights Impact Analysis (CRIA) was conducted on the final rule,
including an analysis of participant data and provisions contained in
the final rule. The CRIA outlines outreach and mitigation strategies to
lessen any possible civil rights impacts. The CRIA concludes by stating
that FNS believes the promulgation of this final rule will impact SFAs
and CACFP institutions and facilities by adding transitional meal
pattern standards. Additionally, participants in the NSLP, SBP, SMP,
and CACFP may be impacted if transitional meal pattern standards are
taken by SFAs and CACFP institutions and facilities. However, FNS finds
that the implementation of mitigation strategies and monitoring by the
FNS Civil Rights Division and FNS Child Nutrition Programs may lessen
these impacts. If deemed necessary, the FNS Civil Rights Division will
propose further mitigation and outreach to alleviate impacts that may
result from the implementation of the final rule.
Executive Order 13175: Consultation and Coordination With Indian Tribal
Governments
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. Additionally, other policy
statements or actions that have substantial direct effects on one or
more Indian Tribes, the relationship between the Federal Government and
Indian Tribes, or on the distribution of power and responsibilities
between the Federal Government and Indian Tribes also require
consultation.
After reviewing the final rule, the Office of Tribal Relations
(OTR) has determined that there are multiple issues that could warrant
tribal consultation such as the milk requirement and not allowing
flexibility for complete exclusion of dairy (not just lactose-free
dairy) products and inclusion of completely different traditional
sources of calcium, and the grain requirement not having flexibility
for having certain indigenous foods for carbohydrates that are not
grains (such as wild rice, amaranth, etc.).
[[Page 7005]]
Recognizing that there have been difficulties associated with the
COVID-19 pandemic and because these are transitional standards, OTR
approves the final rule on the condition that there is robust
consultation on the forthcoming proposed rule related to school
nutrition standards to ensure that indigenous views and dietary
concerns are fully taken into account.
If a tribe requests consultation in the future, FNS will work with
the Office of Tribal Relations to ensure meaningful consultation is
provided.
Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (44 U.S.C. Chap. 35; 5 CFR part
1320) requires the Office of Management and Budget (OMB) to approve all
collections of information 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.
Send comments to the Office of Information and Regulatory Affairs,
OMB, Attention: Desk Officer for FNS, Washington, DC 20503. 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.
This rule contains information collections that have been approved
by OMB under OMB #0584-0006 (7 CFR part 210, National School Lunch
Program), expires 7/31/2023; OMB #0584-0012 (7 CFR part 220, School
Breakfast Program), expires 4/30/2022; OMB #0584-0005 (7 CFR part 215,
Special Milk Program for Children), expires 7/31/2022; and OMB #0584-
0055 (7 CFR part 226, Child and Adult Care Food Program), expired 2/29/
2020. Although the CACFP information collection has expired, USDA is
planning to reinstate it and has published a 60-Day Notice. Revisions
are underway and USDA expects to submit it to OMB for review soon. The
provisions of this rule do not impose new or existing information
collection requirements subject to approval by the OMB under the
Paperwork Reduction Act of 1994.
E-Government Act Compliance
The Department is committed to complying with the E-Government Act
of 2002, 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.
List of Subjects
7 CFR Part 210
Grant programs--education, Grant programs--health, Infants and
children, Nutrition, Penalties, Reporting and recordkeeping
requirements, School breakfast and lunch programs, Surplus agricultural
commodities.
7 CFR Part 215
Food assistance programs, Grant programs--education, Grant
program--health, Infants and children, Milk, Reporting and
recordkeeping requirements.
7 CFR Part 220
Grant programs--education, Grant programs--health, Infants and
children, Nutrition, Reporting and recordkeeping requirements, School
breakfast and lunch programs.
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, 7 CFR parts 210, 215, 220, and 226 are amended as
follows:
PART 210--NATIONAL SCHOOL LUNCH PROGRAM
0
1. The authority citation for 7 CFR part 210 continues to read as
follows:
Authority: 42 U.S.C. 1751-1760, 1779.
0
2. In Sec. 210.10:
0
a. Revise the table in paragraph (c) introductory text; and
0
b. Revise paragraphs (c)(2)(iv)(B), (d)(1)(i), and (f)(3).
The revisions read as follows:
Sec. 210.10 Meal requirements for lunches and requirements for
afterschool snacks.
* * * * *
(c) * * *
Table 1 to Paragraph (c) Introductory Text--Lunch Meal Pattern
----------------------------------------------------------------------------------------------------------------
Grades K-5 Grades 6-8 Grades 9-12
----------------------------------------------------------------------------------------------------------------
Food components Amount of Food \a\ per Week
-----------------------------------------------
(minimum per day)
----------------------------------------------------------------------------------------------------------------
Fruits (cups) \b\............................................... 2\1/2\ (\1/2\) 2\1/2\ (\1/2\) 5 (1)
Vegetables (cups) \b\........................................... 3\3/4\ (\3/4\) 3\3/4\ (\3/4\) 5 (1)
Dark green \c\.............................................. \1/2\ \1/2\ \1/2\
Red/Orange \c\.............................................. \3/4\ \3/4\ 1\1/4\
Beans and peas (legumes) \c\................................ \1/2\ \1/2\ \1/2\
Starchy \c\................................................. \1/2\ \1/2\ \1/2\
Other \c\ \d\................................................... \1/2\ \1/2\ \3/42\
Additional Vegetables to Reach Total \e\........................ 1 1 1\1/2\
Grains (oz eq) \f\.............................................. 8-9 (1) 8-10 (1) 10-12 (2)
Meats/Meat Alternates (oz eq)................................... 8-10 (1) 9-10 (1) 10-12 (2)
Fluid milk (cups) \g\........................................... 5 (1) 5 (1) 5 (1)
----------------------------------------------------------------------------------------------------------------
Other Specifications: Daily Amount Based on the Average for a 5-Day Week
----------------------------------------------------------------------------------------------------------------
Min-max calories (kcal) \h\..................................... 550-650 600-700 750-850
Saturated fat (% of total calories) \h\......................... Allows NSLP and SBP operators and some CACFP and SMP
providers to offer flavored, low-fat milk.
Requires at least 80 percent of the weekly grains in
the school lunch and breakfast menus to be whole grain-rich.
Maintains Sodium Target 1 for NSLP and SBP through SY
2022-2023, as well as for SBP in SY 2023-2024, and implements Sodium
Target 1A for NSLP no later than SY 2023-2024.
Schools that can meet or exceed these transitional standards do
not have to change their menus because of this final rule. USDA
invites the public to comment on the content of this final rule, as
well as provide comments to inform the future rulemaking. This
includes comments that may assist in a comprehensive assessment of
impacts of the areas addressed in this rule.
II. Comments
USDA received four substantive comments on the economic summary
from the proposed rule. All comments expressed concern that a full
analysis of long-term health impacts of the proposed changes was not
included. Respondents also voiced concerns about USDA not engaging
with medical stakeholders to fully understand the health impacts of
changing the 2012 standards for milk, whole grains, and sodium.
There was particular concern with the proposed sodium changes.
USDA Response: USDA recognizes the need for updated standards to
align with the goals of the Dietary Guidelines for Americans, 2020-
2025. The two-stage regulatory process will allow time for USDA to
engage with a variety of medical stakeholders. This final rule will
serve as a transition to updated nutrition standards; a new
rulemaking will include input from various stakeholders through
public comments to assist in an in-depth assessment of potential
impacts. Additionally, in SY 2023-2024, this rule will implement
Sodium Target 1A for NSLP, which will support schools with a gradual
transition to lower-sodium meals. This target is a 10 percent
reduction from Sodium Target 1 for NSLP and represents an achievable
goal while acknowledging the importance of gradual sodium reduction.
A variety of factors, including implementation of FDA's voluntary
reduction targets, developments in food science, and feedback from
State and local stakeholders, will inform USDA's decisions regarding
sodium moving forward.\75\ USDA also increased the percentage of
whole grain-rich offerings required from 50 percent in the proposed
rule to 80 percent in this final rule. This recognizes the
importance of whole grains in a nutritious diet while also
acknowledging the near-term challenges of offering all whole grain-
rich items.
---------------------------------------------------------------------------
\75\ To learn more about the U.S. Food and Drug Administration's
efforts to lower sodium in the U.S. food supply, visit: www.fda.gov/SodiumReduction.
---------------------------------------------------------------------------
III. Summary of Impacts
The estimated impacts of this rule reflect shifts in food
purchases and labor resources incurred by schools for school meal
production. There are no additional Federal revenues provided in
this rule and schools will need to make menu modifications within
current resources. The impacts of these shifts are quantified for
this analysis to demonstrate the potential food and labor costs to
schools as well as markets due to changes in purchasing patterns.
The analyses provide the impact to schools of moving straight to the
2012 standards, which absent this rule would go into effect in SY
2022-2023 as well as the impact to schools of moving to the
standards in this rule from current operations.
USDA estimates this final rule will save \76\ schools $0.15 cent
per meal or $1.1 billion annually compared to directly moving to the
2012 standards for milk, whole grains, and sodium in SY 2022-
2023.\77\ Absent this rule it is estimated to cost $1.3 billion
annually or $0.18 per meal for schools to move immediately to the
2012 milk, whole grains, and sodium requirements. The costs to
schools are due to increased costs to procure entirely whole grain-
rich offerings as well as increases in both food and labor costs to
support scratch cooking to immediately comply with the Sodium Final
Target.
---------------------------------------------------------------------------
\76\ 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.
\77\ The 2012 standards do not permit flavored low-fat milk,
require all grains to be whole grain-rich, and require schools to
meet the Sodium Final Target in SY 2022-2023.
---------------------------------------------------------------------------
Currently in SY 2021-2022, schools unable to meet the NSLP and
SBP standards due to the pandemic can request targeted meal pattern
waivers from their State agency, including for the milk, whole
grains, and sodium requirements. Schools will need to transition
from operating under the COVID-19 waivers to meeting the milk, whole
grain and sodium requirements in this rule starting in SY 2022-2023.
Relative to the current school year operations, this rule is
estimated to potentially increase costs to schools by $187 million
annually or about $0.03 per meal.\78\ Most of these estimated costs
are due to the requirement to offer at least 80 percent of grain
offerings as whole grain-rich and for some schools that still need
to meet Sodium Target 1 and Sodium Target 1A. USDA estimates whole
grain-rich items to be more expensive than enriched items as schools
shift to purchase more whole grain-rich items. Estimated costs
associated with sodium are a result of increases in food and labor
costs for schools that still need to meet Sodium Target 1 and Target
1A. Costs to offer low fat flavored milk as an option are due to low
fat flavored milk being slightly more expensive than fat free
flavored varieties.
---------------------------------------------------------------------------
\78\ If all flavored fat-free milk is substituted with flavored
low-fat milk, and schools regressed in whole grain-rich progress
compared to SY 2014-2015, this rule is estimated to cost $665
million the first year or $0.09 more per meal.
\79\ The 2012 standards do not permit low fat flavored milk
which USDA estimates to be slightly more expensive than fat free
flavored varieties. This slightly reduces the savings generated due
to this rule as this rule permits low fat flavored. Voluntary
incurring of a cost is likely associated with benefits that are
difficult to quantify--potentially, in this case, including reduced
food waste.
---------------------------------------------------------------------------
The $0.15 per meal savings provided by this rule is the cost of
$0.18 per meal to return to the 2012 standards minus the $0.03 per
meal costs associated with the requirements in this rule.\79\ The
changes in this rule are achievable and realistic for schools and
recognize the need for strong nutrition standards in school meals.
USDA intends to have updated regulations that further align school
meal nutrition standards with the goals of the Dietary Guidelines
for Americans, 2020-2025 in place by SY 2024-2025. This analysis
provides five-year cost streams to project potential impacts.
[[Page 7011]]
Table 1--Stream of Quantifiable Costs to Schools
--------------------------------------------------------------------------------------------------------------------------------------------------------
Fiscal Year ($ millions)
-----------------------------------------------------------------------------------------------
2022 2023 2024 2025 2026 Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
NOMINAL COST STREAM
--------------------------------------------------------------------------------------------------------------------------------------------------------
MILK.................................................... $2 $13 $13 $14 $14 $56
80% WHOLE GRAIN-RICH.................................... -48 -303 -309 -315 -321 -1,296
SODIUM TARGET 1 AND 1A.................................. -125 -780 -795 -811 -827 -3,338
-----------------------------------------------------------------------------------------------
TOTAL............................................... -171 -1,069 -1,090 -1,112 -1,134 -4,577
--------------------------------------------------------------------------------------------------------------------------------------------------------
DISCOUNTED COST STREAM
--------------------------------------------------------------------------------------------------------------------------------------------------------
3 PERCENT............................................... -171 -1,038 -1,028 -1,018 -1,008 -4,263
7 PERCENT............................................... -171 -999 -952 -908 -865 -3,896
--------------------------------------------------------------------------------------------------------------------------------------------------------
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 final rule. In the next section, an
impact analysis is provided of each change.
Table 2--Accounting Statement
----------------------------------------------------------------------------------------------------------------
Discount rate
Range Estimate Year dollar (percent) Period covered
----------------------------------------------------------------------------------------------------------------
Benefits:
Qualitative: Provides achievable updates to the milk, whole grain-rich, and sodium standards to transition from
COVID-19 operations.
----------------------------------------------------------------------------------------------------------------
Annualized Monetized (millions/year). n.a. n.a. n.a. n.a. FY 2022-2026
----------------------------------------------------------------------------------------------------------------
Costs incurred by schools:
Qualitative: This final rule provides updates to the milk, whole grain-rich and sodium requirements for schools.
The changes in this rule are achievable standards as schools move from COVID-19 operations to typical meal
service. The estimated savings are generated from schools moving to the standards in this rule instead of
moving to the 2012 meal standards. The estimated potential impacts are provided to quantify the changes in
purchasing patterns and labor hours to meet these requirements.
----------------------------------------------------------------------------------------------------------------
Annualized Monetized ($millions/year) Total -$830 2020 7 FY 2022-2026
-877 2020 3
----------------------------------------------------------------------------------------------------------------
Federal costs:
Qualitative and Quantitative: There are no estimated change in Federal reimbursement levels associated with this
rule. It is assumed participation will not measurably change from the baseline approximated by the status quo.
However, if this rule is not issued then (reflecting the same analytic baseline against which the school cost
savings, above, are estimated) there is an estimated reduction due to schools leaving the NSLP and SBP due to
difficulties returning to the 2012 standards. These figures are presented in the impact analysis.
----------------------------------------------------------------------------------------------------------------
Annualized Monetized ($millions/year) n.a. n.a. n.a. n.a. FY 2022-2026
----------------------------------------------------------------------------------------------------------------
IV. Section by Section Analysis
This final rule provides standards related to milk, whole
grains, and sodium that will set clear programmatic parameters as
schools return to traditional meal service after over two years of
serving meals under pandemic conditions. The Administration plans to
propose new standards later in the year, after a robust engagement
process with program stakeholders. Absent this rule, schools must
return to the milk, whole grains, and sodium regulations from the
2012 rule, which:
Allowed flavoring only in fat-free milk in the NSLP and
SBP.
Required that at least half of the grains offered in
the NSLP be whole grain-rich (meaning the grain product contains at
least 50 percent whole grains and the remaining grain content of the
product must be enriched) in SY 2012-2013 and one year later in the
SBP; and required that effective SY 2014-2015, all grains offered in
both programs be whole grain-rich; and
Required schools participating in the NSLP and SBP to
reduce the sodium content of meals offered on average over the
school week by meeting progressively lower sodium targets over a 10-
year period. The 2012 rule directed SFAs to meet Sodium Target 1 by
SY 2014-2015, Sodium Target 2 by SY 2017-2018, and the Sodium Final
Target by SY 2022-2023.
As noted earlier, full implementation of the 2012 meal pattern
requirements for milk, whole grains, and sodium has been delayed due
to legislative, regulatory, and administrative actions, and the
COVID-19 pandemic. This section assesses the impact of this rule as
well as the impact absent this rule, which would restore the above
2012 standards for milk, whole grains, and sodium.
A. Key Assumptions
USDA conducted a comprehensive study on the school meal programs
in SY 2014-2015 called the School Nutrition and Meal Cost Study.
Data from this study are the most current available on the status of
schools meeting the nutrition standards.\80\ The following impact
analyses use SY 2014-2015 data as applicable and more recent
information to make assumptions to estimate the status.
Additionally, data on the value of school district acquisitions are
from the School Food Purchase Study reflecting SY 2009-2010. This is
the most current school district food acquisition data available and
[[Page 7012]]
figures from this study are inflated to reflect current prices.
However, the distribution of the types of foods school districts
purchase may have shifted during the implementation of the 2012
standards and more recently due to COVID-19 operations.
---------------------------------------------------------------------------
\80\ USDA started to collect data for the next iteration of the
School Nutrition Meal Cost study which is the comprehensive
assessment of the school meal program in SY 2019-2020. Data
collection was stopped due to COVID-19 pandemic and the resulting
school closures. The study is now planned to collect data in SY
2022-2023.
---------------------------------------------------------------------------
The analyses assume Congress will not override these final
standards for the milk, whole grains, and sodium requirements in the
near-term. The base analyses also assume that after two and one-half
years of serving meals through COVID-19 waivers, school meal
participation will normalize to be consistent with service levels in
FY 2019. Simulation of different participation levels are presented
in the Uncertainty Section.
This analysis also assumes that due to the plan to revise these
standards via another rulemaking that there will not be any
measurable health or nutritional impact of the changes in this rule.
This rule builds on the major achievements schools already made
improving school meals to support healthy diets for school children.
Schools have made significant progress towards healthier school
meals. Between SY 2009-2010 and SY 2014-2015, ``Healthy Eating
Index-2010'' (HEI-2010) scores of diet quality for NSLP and SBP
increased significantly. Over this period, the mean HEI-2010 score
for NSLP lunches 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. These significant
increases in HEI are driven by the full suite of the 2012 standards
including higher scores for fruits and vegetables and reduction in
empty calories.
HEI-2010 scores also greatly improved for whole grains. In SY
2014-2015, the HEI-2010 component score for whole grains in NSLP
lunches served improved significantly from SY 2009-2010 to SY 2014-
2015, by 71 percentage points (from 25 to 95 percent of the maximum
score). Similarly, for SBP breakfasts served, the score for whole
grains increased by 58 percentage points (from 38 to 96 percent of
the maximum score) over the same timeframe.\81\
---------------------------------------------------------------------------
\81\ These improvements were made with on average schools
offering 70 percent of grain offerings as whole grain-rich. In SY
2014-2015, one quarter (27 percent) of weekly lunch menus met the
new requirement, which was first implemented in SY 2014-2015. The
majority (87 percent) of weekly lunch menus met the requirements
from the prior school year--that at least 50 percent of grains be
whole grain-rich.
---------------------------------------------------------------------------
In SY 2014-2015, the HEI-2010 score for sodium improved
significantly from a score of 10 percent of the maximum score to 27
percent of the maximum score, which reflects the majority of schools
meeting Sodium Target 1 in the first-year schools were required to
meet Sodium Target 1. From SY 2009-2010 to SY 2014-2015, the average
sodium content of NSLP lunches decreased between 15 percent and 21
percent and SBP breakfasts decreased between 10 percent to 15
percent. By comparison, from SY 2004-2005 to SY 2009-2010, sodium
levels for NSLP lunches and SBP breakfasts decreased by 2 percent
and 11 percent, respectively.\82\
---------------------------------------------------------------------------
\82\ 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.
---------------------------------------------------------------------------
While the HEI-2010 scores for meals offered significantly
improved after implementation of the 2012 meal standards, the HEI-
2010 scores for the lunches and breakfasts consumed by students
participating in NSLP and SBP in SY 2014-2015 were significantly
higher than nonparticipants. Students who ate a school lunch were
more likely to consume milk, fruits, and vegetables and less likely
to consume desserts, snack items, and non-milk beverages at lunch
than students who ate lunch from home or other places. NLSP lunches
consumed had significantly higher HEI-2010 scores compared to
lunches consumed from home or other places (80 percent versus 65
percent out of a possible 100 points). The lunches consumed by NSLP
participants received significantly higher scores than the lunches
consumed by matched nonparticipants for total vegetables (52 percent
of the maximum score versus 38 percent), whole grains (100 percent
versus 63 percent), and dairy (100 percent versus 69 percent).
Additionally, lunches consumed by NSLP participants were lower in
calories, total fat, and saturated fat than lunches consumed by
matched nonparticipants. Breakfasts consumed by SBP participants
contained significantly larger amounts of fruit and whole grains
than breakfasts consumed by matched nonparticipants and had a
significantly higher HEI-2010 score than breakfasts consumed by
matched nonparticipants (66.1 percent versus 58.9 percent).\83\
School meals serve as a critical source of nutrition for the
nation's children especially for children in low-income
households.\84\
---------------------------------------------------------------------------
\83\ 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.
\84\ A higher percentage of income-eligible NSLP participants
consumed any items from the vegetables, fruit, milk products, and
mixed dish categories compared with income-eligible nonparticipants:
Unreleased USDA report using 2011-2016 National Health and Nutrition
Examination Survey (NHANES) data to examine the relationship between
estimated program participation, diet quality, indicators of
nutrition and health, food consumption patterns, and nutrient
intakes.
---------------------------------------------------------------------------
The HEI measures alignment with the Dietary Guidelines of
Americans, which are set based on nutrition recommendations and
evidence of health benefits. Research has shown that closer
alignment with the Dietary Guidelines reduces the risk of obesity
related chronic diseases.\85\ The improvements in HEI scores further
demonstrate the extension of the current health benefits realized by
the 2012 standards to date and the importance of starting healthy
eating habits early.
---------------------------------------------------------------------------
\85\ Dietary Guidelines for Americans, 2020-2025.
---------------------------------------------------------------------------
Early in the COVID-19 pandemic, many schools transitioned to
serving meals under the Summer Food Service Program, which operates
under a separate, simpler meal pattern. In SY 2021-2022, schools
were still able to offer all meals free, but through the Seamless
Summer Option, which uses the NSLP and SBP meal patterns. This
transitioned schools back to the healthier school meals that are
traditionally offered during the school year. However, supply chain
disruptions created additional challenges, and many schools needed
waivers for specific meal pattern requirements, including milk,
whole grains, and sodium. It is expected that the overall positive
nutritional impacts of the 2012 meal standards will continue to
benefit school children as this rule makes achievable adjustments to
strengthen the meal standards while balancing the need to support
schools during transition from COVID-19 operations and supply chain
disruptions. This rule builds on the significant progress schools
already made in implementing the 2012 standards.
Absent this rule, schools would be required to meet the 2012
standards, which would not permit flavored low-fat milk, require all
grains to be whole grain-rich, and require schools to meet the
Sodium Final Target in SY 2022-2023. While these requirements would
further nutritional improvements in school meals, many schools would
not be able to fully meet these requirements in the near term. This
is particularly true for the Sodium Final Target. The time needed to
successfully lower sodium levels in school meals will vary
considerably. For certain products, lowering sodium levels in school
meals may be quicker and for other products it may require more
time. This transitional rule will give schools more time to work to
identify student preferences through combination of practices
including taste tests, tailoring menu options, promoting healthy
choices, and making incremental menu changes.\86\
---------------------------------------------------------------------------
\86\ 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.
---------------------------------------------------------------------------
Implementing the Sodium Final Target would require a significant
reduction over an extremely short period of time, which would not be
achievable for both industry and schools. The 2012 sodium reduction
timeline was never fully implemented due to a long history of
administrative and legislative actions that delayed implementation
of Sodium Target 2. It is unrealistic to expect full implementation
of the 2012 standards for milk, whole grains, and sodium and the
associated nutritional improvement to be realized in SY 2022-2023
due to the significant challenges facing schools and industry in the
near term. As USDA commences subsequent rulemaking to propose and
finalize long-term standards, the nutritional impacts resulting from
changes to the milk, whole grains, and sodium requirements will be
reexamined and included in the process. USDA welcomes any
[[Page 7013]]
additional information that should be considered on the nutritional
impacts of the milk, whole grains, and sodium requirements in this
rule.
B. Impacts
Milk Standard
In this final rule, USDA allows NSLP and SBP operators the
option to offer flavored low-fat milk and requires unflavored milk
to be offered at each meal service. This flavored milk standard will
be extended to beverages for sale during the school day and will
also apply in the SMP and CACFP for participants ages 6 years and
older. The decision to allow flavored low-fat milk reflects concerns
about declining milk consumption and the importance of the key
nutrients provided by milk for school-aged children.\87\ Menu
planners must make necessary adjustments in the weekly menu to
account for the additional calories and fat content associated with
offering flavored low-fat milk. This final rule does not change the
upper caloric and fat limits specified in the 2012 rule or the
requirement to offer a variety (at least two choices) of fluid milk
in the NSLP and SBP.
---------------------------------------------------------------------------
\87\ https://www.gpo.gov/fdsys/pkg/FR-2017-11-30/pdf/2017-25799.pdf.
---------------------------------------------------------------------------
Unflavored low-fat and flavored fat-free milks were the most
frequently offered varieties on daily menus in SY 2014-2015. The
change in this rule may result in SFAs substituting flavored fat-
free milk varieties with flavored low-fat varieties. About 91
percent of daily NSLP menus and 76 percent of daily SBP menus
offered flavored fat-free milk.\88\ The cost for eight ounces of
flavored low-fat milk is on average about $0.02 higher than flavored
fat-free milk.\89\ If across all NSLP and SBP menus, all flavored
low-fat milk was substituted with flavored fat-free milk, it would
cost about $126 million more a year. Not all schools will want to
make this substitution as the change must be made within current
resources and caloric and fat limits. Based on the most current data
available, about 8 percent of school districts requested an
exemption to serve flavored low-fat milk.\90\ Using the average
number of children per school district,\91\ it is estimated that
about 9 percent of daily NSLP and SBP menus include flavored low-fat
milk through exemptions or flexibilities. USDA estimates this to be
about $13 million more a year in the value spent on milk.
---------------------------------------------------------------------------
\88\ 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.
\89\ U.S. Department of Agriculture, Food and Nutrition Service,
Office of Research and Analysis, School Food Purchase Study-III, by
Nick Young et al. Project Officer: John R. Endahl, Alexandria, VA:
March 2012.
\90\ Based on unpublished USDA data: Child Nutrition Program
Operations study year 3.
\91\ There were no significant characteristics of these school
district suggesting that smaller or larger districts requesting the
exemption. This analysis assumes that about 57 percent of children
enrolled in the 8 percent of districts requesting an exemption
participate in the NSLP and about 30 percent participate in the SBP.
Table 3--Estimated Impact of Purchasing Low Fat Flavored Milk
[Millions]
------------------------------------------------------------------------
Estimated
Substitution level annual cost
------------------------------------------------------------------------
MAXIMUM--REPLACE ALL FAT FREE FLAVORED WITH LOW FAT $126
FLAVORED...............................................
MINIMUM--9 PERCENT OF DAILY MENUS REPLACED FAT FREE WITH 13
LOW FAT FLAVORED (BASED ON EXEMPTION DATA).............
------------------------------------------------------------------------
Most milk producers likely supply both varieties, which
minimizes actual industry impacts. The additional cost of flavored
low-fat milk may result in purchasing pattern shifts in school
districts choosing to serve flavored low-fat milk. USDA estimates
that this final rule will increase the milk cost and/or transfers
from anywhere between $13 million and $126 million. Absent this
rule, there would be a reduction in milk costs of the same range due
to the restriction on offering flavored low-fat milk.\92\
---------------------------------------------------------------------------
\92\ Voluntary incurring of a cost is likely associated with
benefits that are difficult to quantify--potentially, in this case,
including reduced food waste.
---------------------------------------------------------------------------
Whole Grain-Rich Standard
Starting in SY 2022-2023, this final rule will require that at
least 80 percent of the grains offered in the NSLP and SBP meet the
whole grain-rich criteria specified in FNS guidance, and the
remaining grain items offered must be enriched. The 2012 final rule
required all grains to be whole grain-rich by SY 2014-2015; however,
this requirement was never fully implemented due to a long history
of administrative and legislative actions, including exemptions that
began in the first year of implementation. In SY 2014-2015, the
first year in which all grains were required to be whole grain-rich,
only 27 percent of weekly lunch menus met this requirement. However,
the majority (87 percent) of weekly lunch menus offered at least 50
percent of the grains as whole grain-rich. In SBP, about half of all
weekly breakfast menus offered only whole grain-rich grains, while
95 percent offered at least 50 percent of the grains as whole grain-
rich. Despite some 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.\93\ This rule recognizes this progress and the nutritional
importance of whole grains, while still providing support for
schools facing challenges serving all grain items as whole grain-
rich.
---------------------------------------------------------------------------
\93\ 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.
---------------------------------------------------------------------------
This analysis is based on the price difference between whole
grain-rich items and enriched grain items to calculate the impact
associated with changing the whole grain-rich requirement. The 2012
final meal standards rule Regulatory Impact Analysis estimated that
whole grain-rich items cost 34 percent more than enriched grain
items.\94\ While this is an older analysis, it is still the most
current available. However, there are other more recent data points
that suggest that this price difference is likely lower due to wider
availability of whole grain-rich items. Over 85 percent of the grain
offerings in NSLP and SBP in SY 2014-2015 were whole grain-rich.
This suggests most items are whole grain-rich, but certain grains
may be more difficult to find in acceptable whole grain-rich form,
including commonly offered items such as croutons, biscuits, and
rolls.\95\ Additionally, during the period in which schools needed
an exemption if they were unable to meet the requirement to offer
all grains as whole grain-rich, use of the exemption was relatively
low. According to an unpublished USDA study, as of SY 2017-2018, 28
percent of SFAs requested an exemption for the whole grain-rich
requirement in at least one school year. In SY 2017-2018, 24 percent
requested an exemption. The availability of whole grain-rich
products through USDA Foods and the commercial market has increased
significantly since the implementation of the 2012 meal standards.
Additionally, there was no consistent significant difference in the
cost per meal between schools that offered at least 50 percent whole
grain-rich items and schools that offered under 50 percent. There
was also no significant difference in the meal
[[Page 7014]]
costs for schools meeting the overall grain quantity
requirement.\96\
---------------------------------------------------------------------------
\94\ Footnote in the CACFP rule provides the citation for the
34% as it was based on an internal USDA analysis and it is not in
the published 2012 meal standards rule https://www.regulations.gov/document/FNS-2011-0029-4304.
\95\ These were the items that school districts requested
exemptions to serve based on informal USDA data.
\96\ U.S. Department of Agriculture, Food and Nutrition Service,
Office of Policy Support, School Nutrition and Meal Cost Study,
Final Report Volume 3: School Meal Costs and Revenues by Christopher
Logan, Vinh Tran, Maria Boyle, Ayesha Enver, Matthew Zeidenberg, and
Michele Mendelson. Project Officer: John Endahl. Alexandria, VA:
April 2019.
---------------------------------------------------------------------------
For these reasons, this analysis estimates a price increase of
15 percent for whole grain-rich items over enriched grain items to
estimate the impact of serving more whole grain-rich items. Using
data from the SY 2009-2010 School Food Purchase Study III, which
collects data on the value of school district food acquisitions,\97\
a weighted average price per ounce of grains is calculated. This
price per ounce is then adjusted by the Producer Price Index for
grains to account for inflation since these data were collected. The
adjusted price per ounce is $0.10. As noted, this analysis assumes
whole grain-rich items are estimated to cost 15 percent more than
the estimated $0.10 per ounce of grain. This means that it costs
$0.015 more on average for an ounce of whole grain-rich grains
compared to an ounce of enriched grains.
---------------------------------------------------------------------------
\97\ U.S. Department of Agriculture, Food and Nutrition Service,
Office of Research and Analysis, School Food Purchase Study-III, by
Nick Young et al. Project Officer: John R. Endahl, Alexandria, VA:
March 2012.
Table 4--Price per Pound for Grain Items From School Food Purchase Study III
----------------------------------------------------------------------------------------------------------------
$ Value Pounds Price per
Grain item group purchased purchased pound Price per oz
----------------------------------------------------------------------------------------------------------------
BREAD & ROLLS................................... $465,505,505 406,629,005 $1.1448 $0.0715
PASTA & NOODLES................................. 22,795,477 24,500,911 0.9304 0.0581
RICE, BARLEY & OTHER GRAINS..................... 17,626,092 18,115,017 0.9730 0.0608
---------------------------------------------------------------
TOTAL WEIGHTED.............................. 505,927,074 449,244,933 1.1262 0.0704
----------------------------------------------------------------------------------------------------------------
Schools must offer a minimum quantity of grains daily and weekly
for both lunch and breakfast; these requirements vary for the three
age/grade groups. For the 9-12 age/grade group, the minimum quantity
of grain that must be offered per week is 10 oz equivalent, which is
the sum of the daily quantity requirement of 2 oz equivalents. For
the K-5 and 6-8 age/grade groups, the required weekly quantity is
higher than the daily totals summed across the week.\98\ The average
weighted daily quantity of grains necessary to meet the average
weekly requirement across all age/grade groups and NSLP and SBP is
1.68 oz equivalents (or 8.44 oz equivalents across the week). The
1.68 oz equivalents of whole grain-rich grains a day is estimated to
cost $0.025 (1.68 x $0.015) more than the cost of 1.68 oz
equivalents of enriched grain items. This price difference applied
to the number of additional grain oz equivalents that schools will
need to offer as whole grain-rich to meet the requirements of this
final rule, multiplied by the number of meals, provides an estimated
value of the cost to transition more offerings to whole grain-rich.
---------------------------------------------------------------------------
\98\ This assumes a 5-day school week and the daily quantity for
K-5 and 6-8 age/grade groups is 1 oz equivalents and the weekly
requirement is 8 oz equivalents for NSLP and 7 oz equivalents for
SBP.
Table 5--Ounce Equivalents at Each Whole Grain-Rich Level
------------------------------------------------------------------------
Total weekly
ounce
Whole grain-rich requirement percentage equivalents
required
------------------------------------------------------------------------
100 PERCENT (2012 REQUIREMENT).......................... 8.44
80 PERCENT (THIS FINAL RULE)............................ 6.75
50 PERCENT (PRIOR REQUIREMENT).......................... 4.22
75 PERCENT (ESTIMATED CURRENT LEVEL).................... 6.33
------------------------------------------------------------------------
The range of costs are built on two separate sets of
assumptions. The high estimated cost level assumes that because the
2012 whole grain-rich requirement was never fully implemented, all
schools moved back to the requirement to offer half of grains as
whole grain-rich which was the requirement in the proposed rule.
This is likely an overestimate due to the significant progress
schools and the food industry have made since SY 2012-2013. The low
estimated scenario, which is the expected scenario, uses the
information to-date on whole grain-rich progress and assumes that on
average schools are currently offering 75 percent grain items as
whole grain-rich. This uses the information that 70 percent of
weekly menus at schools were already offering at least 80 percent of
grain items as whole grain-rich in SY 2014-2015.
These estimated costs may be incurred by the school district
and/or within the grain market in the form of purchases of
additional whole grain-rich varieties. Schools may shift away from
items that are not preferred as whole grain-rich and substituting
different whole grain-rich items. This could potentially reduce
variety and impact the manufacturers of these items, possibly
resulting in loss of some of the school market or increased costs to
develop successful whole grain-rich options.
Table 6 shows the costs associated with moving fully to 2012
standard that all grains are whole grain-rich and moving to the 80
percent threshold in this rule from both estimated starting points
(75 percent and 50 percent of grains as whole grain-rich). These are
the costs if this rule is not issued, and schools must return to the
2012 standard of exclusively offering whole grain-rich items. The
costs associated with moving to the 80 percent threshold are the
costs of this rule.
Table 6--Estimated Costs of Increasing Whole Grain-Rich Items
[Millions]
------------------------------------------------------------------------
Expected annual cost High annual cost
Whole grain-rich requirement (increasing from (increasing from 50
75 percent WGR) percent WGR)
------------------------------------------------------------------------
INCREASING TO 80 PERCENT.... $76 $454
[[Page 7015]]
INCREASING TO 100 PERCENT... 379 757
------------------------------------------------------------------------
Without this final rule, schools would be required to meet the
2012 requirement to offer all grains as whole grain-rich. Compared
to the 2012 requirement, this rule is estimated to save $303 million
annually by instead requiring 80 percent of grains offered to be
whole grain-rich.
Sodium Standard
The 2012 Final Rule directed schools to meet Sodium Target 1 by
SY 2014-2015, Sodium Target 2 by SY 2017-2018, and the Sodium Final
Target by SY 2022-2023. This rule extends Sodium Target 1 through
the end of SY 2022-2023 for both NSLP and SBP and requires
compliance with Sodium Target 1A for NSLP starting in SY 2023-2024.
In the absence of this rule, schools would be required to implement
the Sodium Final Target for both NSLP and SBP in SY 2022-2023.
In SY 2014-2015, the first year Target 1 was scheduled to take
effect, 72 percent of all average weekly NSLP menus, and 67 percent
of all average weekly SBP menus, met Target 1.\99\ According to the
USDA study on Successful Approaches to Reduce Sodium in School
Meals,\100\ schools, Food Service Management Companies, and
manufacturers noted that it was possible to meet Target 1 with foods
already developed but to implement the subsequent targets, schools
will likely need to move to more scratch cooking. Almost 80 percent
of schools do some scratch cooking and 70 percent of schools do on-
site preparation, where the school prepares meals on-site for
serving only at that school.\101\ This suggests that schools in
general have the structure to conduct some scratch cooking, but that
reductions in sodium may result in more labor-intensive food
preparations and/or additional infrastructure needs.
---------------------------------------------------------------------------
\99\ 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.
\100\ 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.
\101\ Standing, Kim, Joe Gasper, Jamee Riley, Laurie May, Frank
Bennici, Adam Chu, and Sujata Dixit-Joshi. 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.
---------------------------------------------------------------------------
There was no significant difference between the cost per meal
for schools that were meeting Target 1 and those that were not
meeting Target 1.\102\ Given that most schools were able to meet
Target 1 with available food or with few changes to meal-
preparation, this finding is not surprising, but may not be
sustained as further sodium Targets are implemented. The need for
more labor-intensive food preparation, including scratch cooking,
would likely continue until lower sodium products are more readily
available in the school food market, which will take time.
---------------------------------------------------------------------------
\102\ U.S. Department of Agriculture, Food and Nutrition
Service, Office of Policy Support, School Nutrition and Meal Cost
Study, Final Report Volume 3: School Meal Costs and Revenues by
Christopher Logan, Vinh Tran, Maria Boyle,Ayesha Enver, Matthew
Zeidenberg, and Michele Mendelson. Project Officer: John Endahl.
Alexandria, VA: April 2019.
---------------------------------------------------------------------------
Industry members reported in the USDA study on Successful
Approaches to Reduce Sodium in School Meals that to be successful in
reducing sodium, taste tests with students are critical before mass
production. Industry reported that this process can take time and if
not done correctly may result in increased plate waste or students
choosing not to participate in school meals. If school meals taste
markedly different than foods that students eat outside of school,
which may have much more sodium, it can be difficult to gain their
acceptance of the foods served in schools.
About three-quarters of school food service directors reported
in SY 2016-2017 that gaining student acceptance of the new standards
was moderately to extremely challenging with respect to maintaining
student participation.\103\ Returning to the 2012 standards in SY
2022-2023 will not allow for sufficient time for industry to
continue to successfully reduce sodium levels in products for the
school market.
---------------------------------------------------------------------------
\103\ U.S. Department of Agriculture, Food and Nutrition
Service, Office of Policy Support, Child Nutrition Program
Operations Study (CN-OPS-II): SY 2016-17. Beyler, Nick, Jim Murdoch,
and Charlotte Cabili. Project Officer: Holly Figueroa. Alexandria,
VA: June 2021.
---------------------------------------------------------------------------
The Final Sodium Target in the 2012 standards was meant to be
achieved over a period of ten years while meeting two interim sodium
Targets. Sodium Target 2 was a 20 percent reduction from Sodium
Target 1. The Sodium Final Target was another 25 percent reduction
from Sodium Target 2 and a 40 percent reduction from Sodium Target
1.\104\ Like the 2012 whole grain-rich requirement, schools were
never required to fully adhere to the 2012 sodium reduction timeline
due to a long history of administrative and legislative actions. The
immediacy of going straight to the Sodium Final Target when the
gradual sodium reduction did not occur as intended, compounded by
the COVID-19 pandemic, will likely be extremely difficult due to the
drastic reduction required over a short period of time. Meeting the
Sodium Final Target would be a 35 percent drop on average for NSLP
and SBP from sodium levels in prepared meals in SY 2014-2015.\105\
---------------------------------------------------------------------------
\104\ Percent decreases are based on the sum of Sodium Target
lunch and breakfast requirements.
\105\ 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.
---------------------------------------------------------------------------
Industry has made great strides in producing lower sodium
products since the implementation of the 2012 standards and USDA
Foods increased lower sodium offerings; however, additional time is
necessary for industry to adjust and continue to formulate lower
sodium products. The FDA, in October 2021, released voluntary sodium
reduction targets for the food industry. The FDA's guidance provides
voluntary short-term (2.5 year) sodium reduction targets for food
manufacturers, chain restaurants, and food service operators for 163
categories of processed, packaged, and prepared foods. The targets
in the FDA's guidance seek to support decreasing average U.S.
population sodium intake from approximately 3,400 mg to 3,000 mg per
day, about a 12 percent reduction. While FDA is recommending the
voluntary targets be met in 2.5 years, in advance of that timeframe
schools are anticipated to be able to procure additional options
that are lower in sodium as the food industry continues
reformulation efforts and develops new food products that align with
FDA's voluntary targets.\106\
---------------------------------------------------------------------------
\106\ U.S. Food and Drug Administration: Voluntary Sodium
Reduction Goals: Target Mean and Upper Bound Concentrations for
Sodium in Commercially Processed, Packaged, and Prepared Foods.
October 2021 https://www.fda.gov/regulatory-information/search-fda-guidance-documents/guidance-industry-voluntary-sodium-reduction-goals.
---------------------------------------------------------------------------
The USDA study on Successful Approaches to Reduce Sodium in
School Meals also noted that reducing sodium can be challenging,
especially when using pre-packaged products, which may result in
schools no longer purchasing these items.\107\ Combination entrees
and accompaniments contributed the most (61 percent) to the
[[Page 7016]]
sodium levels of prepared foods, specifically sandwiches with plain
meat and poultry, condiments, and toppings.\108\ This may
financially impact the manufacturers of these products if they are
not able to successfully reduce the sodium levels of products sold
to schools.
---------------------------------------------------------------------------
\107\ 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.
\108\ 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.
---------------------------------------------------------------------------
This final rule maintains Sodium Target 1 for NSLP and SBP
through SY 2022-2023, retains Sodium Target 1 for SBP in SY 2023-
2024, and institutes a modified Sodium Interim Target 1A for NSLP
beginning in SY 2023-2024.\109\ USDA set the near-term Target 1A
reduction at 10 percent, which also aligns with research indicating
gradual sodium reductions are less noticeable to consumers.\110\
Target 1A is about a 1 percent to 5 percent decrease from sodium
levels in prepared meals in SY 2014-2015 for K-5 and 9-12 age grade
groups and a 2 percent increase for 6-8 age/grade group.\111\
---------------------------------------------------------------------------
\109\ As noted in the preamble, when examining the daily sodium
allocation attributed to each meal, USDA determined that sodium
reductions are most needed at lunch. Therefore, USDA is maintaining
Sodium Target 1 for breakfast during the two-year timeframe of this
transitional rule, which will allow schools to focus their sodium
reduction efforts on school lunch.
\110\ Institute of Medicine 2010. Strategies to Reduce Sodium
Intake in the United States. Washington, DC: The National Academies
Press. https://doi.org/10.17226/12818.
\111\ 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.
Table 8--Sodium Target 1 and 1A and Average Weekly Sodium Levels for Prepared Meals
--------------------------------------------------------------------------------------------------------------------------------------------------------
SY 2014-2015 NSLP
Age/grade group Sodium Target 1 average sodium % Difference from Target 1A NSLP % Difference from
NSLP levels \112\ Sodium Target 1 Sodium Target 1A
--------------------------------------------------------------------------------------------------------------------------------------------------------
K-5................................................. 1,230 1,125 -9 1,110 -1
6-8................................................. 1,360 1,200 -12 1,225 2
9-12................................................ 1,420 1,345 -5 1,280 -5
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sodium Target 1 SY 2014-2015 SBP % Difference from ..................
SBP average Sodium Target 1
sodium levels
\113\
------------------------------------------------------------
K-5................................................. 540 505 -6
6-8................................................. 600 564 -6
9-12................................................ 640 584 -9
--------------------------------------------------------------------------------------------------------------------------------------------------------
To estimate the impacts associated with additional sodium
reduction, this analysis focuses on the increased need for scratch
cooking due to immediate sodium reduction timeframe which does not
allow for sufficient time for product development as noted earlier.
Scratch cooking is one method to reduce sodium levels and over time
can be successfully integrated into a comprehensive sodium reduction
plan along with incorporating more lower sodium products into menus.
Schools would be able to balance scratch cooking with lower sodium
products as industry continues to formulate lower sodium foods. The
requirement of the Sodium Final Target going into effect immediately
in SY 2022-2023 absent this rule will require schools to move
straight to cooking more recipes from scratch. As schools prepare
more foods on site, labor costs will increase as prepackaged foods
are substituted with scratch cooked foods and schools will need to
increase time spent on food preparation. This may require hiring
more school food service staff and/or reallocating responsibilities.
In addition to labor impacts, the types of foods schools purchase
will likely change due to reducing the prepackaged foods and
increasing ingredient-based items to support sodium reduction. For
example, the USDA study on Successful Approaches to Reduce Sodium in
School Meals found that school districts in the study reported
serving more fresh fruits and vegetables to reduce sodium content.
This may cause a reduction in food costs if items purchased to
scratch cook are less expensive; however, these costs may be offset
by the quantity needed or additional foods purchased to prepare
meals from scratch.
---------------------------------------------------------------------------
\112\ 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.
\113\ 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.
---------------------------------------------------------------------------
Food and labor costs account for the vast majority (45 percent
each for a total of 90 percent) of the average cost to produce a
school lunch for a school district. Other reported direct costs are
the remaining 10 percent. This distribution is similar for SBP
breakfasts.\114\ To simulate the potential increase in costs due to
changes to the Sodium Targets, this analysis focuses on the
estimated increase in labor costs, however food costs are also
estimated to proportionally increase based on the distribution of
food and labor costs in a school meal.\115\
---------------------------------------------------------------------------
\114\ U.S. Department of Agriculture, Food and Nutrition
Service, Office of Policy Support, School Nutrition and Meal Cost
Study, Final Report Volume 3: School Meal Costs and Revenues by
Christopher Logan, Vinh Tran, Maria Boyle, Ayesha Enver, Matthew
Zeidenberg, and Michele Mendelson. Project Officer: John Endahl.
Alexandria, VA: April 2019.
\115\ This distribution of food, labor, and other has remained
consistent between the two study time periods (SY 2005-2006 and SY
2015-2015). The School Lunch and Breakfast Cost Study--II in SY
2005-2006 and School Nutrition Meal Cost study in SY 2014-2015.
---------------------------------------------------------------------------
To capture current scratch cooking practices to estimate the
potential increase in scratch cooking and the corresponding impacts,
data from USDA's Farm to School Census \116\ are used. While the
Farm to School Census does not represent all school districts, it
does encompass the majority: 65 percent of school districts reported
that they participated in at least one Farm to School activity in SY
2018-2019. The distribution of prevalence of scratch cooking from
the Farm to School Census is assumed across the 97,000 schools for
this analysis.\117\ In this respect, these estimates may overstate
the current scratch cooking levels with the assumption that school
districts participating in Farm to School activities may be more
likely to prepare more recipes from scratch.
---------------------------------------------------------------------------
\116\ 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.
\117\ Applying this distribution to schools assumes no
significant variation in scratch cooking by school district
characteristics.
[[Page 7017]]
Talbe 7--Percent of School Districts by Percent of Scratch Cooked
Recipes
[Farm to School Census data]
------------------------------------------------------------------------
Prevalence Percent of schools
------------------------------------------------------------------------
bls.gov).
\119\ Full compensation series is less granular that wage
series, the two closest series are used to estimate the labor rates
for additional food service staff dedicated to cooking.
---------------------------------------------------------------------------
This analysis assumes, based on early implementation progress,
most schools are already meeting Sodium Target 1 and can meet Target
1A with reasonable menu changes. In SY 2014-2015, the first year the
Sodium Target 1 went into effect, 72 percent of the schools were
meeting this requirement for NSLP and 13 percent were within 10
percent of meeting Target 1 for NSLP. For SBP, 67 percent were
meeting Target 1 and just over 10 percent were within 10 percent of
meeting Target 1. Average prepared sodium levels were already 5
percent to 12 percent lower than the Target 1 limits for NSLP and 6
percent to 9 percent lower for SBP. Average NSLP sodium levels in SY
2014-2015 were also very close to Target 1A.
To capture any schools that are not currently meeting Target 1
or Target 1A, this analysis assumes that 10 percent of meals are
served in schools that will need to make changes to their current
menus to incorporate lower sodium products. Target 1 was meant to be
mostly met with products currently available, but these schools may
also need to slightly increase scratch cooking or change preparation
practices. This analysis assumes that these schools will need to
allow for one more labor hour a day to facilitate the menu changes
needed to achieve Target 1 and Target 1A. This is estimated to cost
about $98 million more in labor and food to bring these schools to
Targets 1 and 1A in SY 2022-2023.
Absent this rule, schools would be required to move to the
Sodium Final Target. For this analysis it is assumed if schools are
cooking more than 75 percent of recipes from scratch, the Sodium
Final Target is achievable. This is supported by the assumption that
scratch cooking would reduce combination entr[eacute]es and
condiments, which USDA research finds contribute the most sodium to
school meals. Based on the prevalence of scratch cooking, it is
assumed that about 80 percent meals are served in schools that will
need to increase labor by two full hours per day. The remaining 20
percent of meals are served in schools that will need to increase
labor by one hour per day, because these schools are already making
between 51 percent and 75 percent of recipes from scratch. It is
estimated that it would cost about $975 million in food and labor
costs to achieve the Sodium Final Target in SY 2022-2023. This is a
per meal increase of $0.13.
Table 9--Estimated Costs by Sodium Target
[Millions]
----------------------------------------------------------------------------------------------------------------
Average hours
Target of additional Estimated Estimated food Estimated
labor per day labor costs costs total costs
----------------------------------------------------------------------------------------------------------------
TARGET 1 IN SY 2022-2023; TARGET 1A IN SY 2023- 1.0 $49 $49 $98
2024..........................................
FINAL TARGET IN SY 2022-2023................... 1.8 438.5 438.5 877
----------------------------------------------------------------------------------------------------------------
This analysis does not take into consideration the costs of
purchasing additional equipment and/or kitchen renovations to
support scratch cooking or the challenges of immediately moving to
the Sodium Final Target without enough time to implement successful
strategies to reduce sodium. The school districts in the USDA study
on Successful Approaches to Reduce Sodium in School Meals reported
that scratch cooking and fresh produce preparation required space
for preparing foods, adequate storage space including freezer and
refrigeration space, proper cafeteria line display and service
equipment, and maintenance or upgrading of kitchen equipment for
efficient mass preparation of items. Smaller SFAs and those with
older cafeteria equipment especially noted these challenges. It is
unlikely that schools would be able to procure the necessary
equipment to support the increases in scratch cooking in time for SY
2022-2023 due to the procurement process timeframe, which has been
further delayed by supply chain disruptions. School size and
urbanicity were also associated with SFAs' abilities to procure
lower sodium foods and to utilize effective menu planning
strategies. Small, rural SFAs reported fewer resources available for
purchasing and preparing lower sodium foods, while large, urban SFAs
were able to procure more low-sodium items at a lower cost and
reported having access to a larger number of suppliers, which
enabled them to use more effective menu planning strategies. This is
further supported by smaller school districts (less than 500
students enrolled) and rural school districts on average serving
[[Page 7018]]
meals with significantly higher sodium levels in SY 2014-2015.\120\
---------------------------------------------------------------------------
\120\ 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.
---------------------------------------------------------------------------
As noted, sodium reduction must be implemented over time to
allow for successful product reformulation while balancing increased
scratch cooking. Taste testing was the most used approach for
gaining student acceptance of lower sodium items. School districts
reported experiencing challenges in gaining student acceptance, but
indicated that they were often successful when using a combination
of supportive approaches such as performing taste tests to identify
student preferences, tailoring menu options to cultural and regional
preferences, promoting healthy food choices through education and
communication materials, and implementing menu changes
incrementally.
Many districts also engaged parents, staff, and community
members in taste tests, nutrition education, and other promotional
activities to increase buy-in.\121\ According to an analysis of
2011-2016 National Health and Nutrition Examination Survey (NHANES)
data, almost all school children (94 percent) had usual sodium
intakes that exceed the Chronic Disease Risk Reduction (CDRR)
level.122 123 This is a widespread issue and strategies
must be implemented by industry and schools over time for success.
---------------------------------------------------------------------------
\121\ 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.
\122\ Reducing sodium intakes above the CDRR is expected to
reduce the risk of chronic disease.
\123\ Unreleased USDA report using 2011-2016 National Health and
Nutrition Examination Survey (NHANES) data to examine the
relationship between estimated program participation, diet quality,
indicators of nutrition and health, food consumption patterns, and
nutrient intakes.
---------------------------------------------------------------------------
Given that these strategies are meant to be implemented over
time, schools will not be able to pivot quickly to these strategies
in SY 2022-2023, particularly given the challenges they will face in
shifting off of COVID-19 operations. This is also compounded by the
current labor shortages school districts and the entire food service
industry are facing as employees left jobs during the pandemic.\124\
Prior to the pandemic schools expressed concerns about staffing
levels especially in smaller school districts where staff may be
responsible for multiple jobs.\125\ The pandemic intensified
staffing issues for schools and many are currently experiencing
shortages and increases in labor rates. Additional burden is
currently placed on schools due to the time needed to manage
procurement and menu changes in response to the supply chain
disruptions. The immediacy of moving to the Sodium Final Target in
SY 2022-2023 does not allow schools sufficient time to set up the
necessary infrastructure to achieve the sodium reduction required
for the Sodium Final Target.
---------------------------------------------------------------------------
\124\ Employment in leisure and hospitality is down by 1.4
million, or 8.2 percent, since February 2020. The Employment
Situation--October 2021 (bls.gov).
\125\ U.S. Department of Agriculture, Food and Nutrition
Service, Office of Policy Support, School Nutrition and Meal Cost
Study, Final Report Volume 1: School Meal Program Operations and
School Nutrition Environments by Sarah Forrestal, Charlotte Cabili,
Dallas Dotter, Christopher W. Logan, Patricia Connor, Maria Boyle,
Ayseha Enver, and Hiren Nissar. Project Officer: John Endahl.
Alexandria, VA: April 2019.
---------------------------------------------------------------------------
Participation Impacts
This final rule is not anticipated to measurably impact school
meal participation due to the changes to the milk, whole grains, and
sodium requirements. As noted earlier, this rule provides realistic
goals for schools still transitioning from COVID-19 operations and
encountering supply chain issues. The COVID-19 meal service levels
were lower than typical in the early part of the pandemic when most
schools shut down and transitioned to grab-and-go sites to ensure
continuity of school meals for children. As schools opened and more
children attended school in person, meals served started to move
closer to pre-pandemic levels.\126\ Through the COVID-19 nationwide
waivers, schools have been able to offer free meals to all children
to facilitate COVID-19 safety precautions. As schools transition
back to typical operations, there may be some uncertainty in
participation levels, which may pose challenges in projecting
quantities of foods to purchase. This rule is sensitive to the types
of foods schools already typically have available to purchase to
meet the meal standards. While this rule is not expected to
significantly impact program participation, it does support schools
and allows additional time for schools to gauge meal program
participation post-COVID.
---------------------------------------------------------------------------
\126\ According to FNS administrative data on meals served
across NSLP, SBP, and SFSP, October 2020 meals were only 65 percent
of total October 2019 meals. May 2021 meals were 86 percent of May
2019 meals service.
---------------------------------------------------------------------------
Absent this rule, schools would be required to meet the 2012
standards, most notably meeting the Sodium Final Target requirement,
which is a significant reduction in sodium levels. This would pose
an extreme challenge for most schools as the full sodium reduction
timeline from the 2012 standards was never fully implemented and
schools were never required to meet targets below Sodium Target 1.
Without this rule, some schools may leave the programs, as the
benefits of participation are outweighed by the resources needed to
meet program requirements.
It is unlikely that schools will leave the programs due to the
milk and whole grain-rich requirements in the 2012 standards due to
improved product availability and current progress. However, moving
straight to the Sodium Final Target without gradual reduction in
sodium levels through product availability and increased scratch
cooking is unrealistic and may result in schools dropping out the
programs. As noted earlier, smaller (less than 500 enrolled
students) and rural schools had significantly higher sodium levels
and face additional challenges due to insufficient resources and
lack of product availability. Schools that already receive low
levels of federal reimbursement due to less free and reduced-price-
certified students may not find the benefits of the programs worth
the additional resources needed to abruptly meet the Sodium Final
Target. To assess the potential number of schools that would drop
out of the school meal programs if the 2012 standards immediately
went into effect next school year, smaller schools with low levels
of free and reduced-price-certified children (less than 25 percent)
are targeted in estimating this unintentional impact.
Just under 5 percent of schools nationwide have less than 500
students enrolled and less than 25 percent free and reduced-price-
certified children. This is about 4,500 schools estimated to drop
out of the school meal programs absent this rule. About 25 percent
of these schools are in rural areas. There are estimated to be about
1.4 million children enrolled in these schools with about 214,000
children approved for free and reduced-price meals.\127\ USDA
estimates there are about 814,000 daily NSLP participants and
428,000 daily SBP participants in these schools.\128\ Federal
reimbursements are estimated to decrease by an estimated $180
million the first year (or about 1 percent of total NSLP and SBP
meal reimbursements) due to schools dropping out of the NSLP and SBP
and children losing access to school meal benefits.
---------------------------------------------------------------------------
\127\ Based on an internal USDA analysis using nationally
representative data from the School Nutrition Meal Cost study on
school characteristics.
\128\ Using national participation rates of 57 percent for NSLP
and 30 percent for SBP.
Table 10--Annual Reduction in Federal Reimbursements Due To Schools Leaving NSLP and SBP
[Millions]
----------------------------------------------------------------------------------------------------------------
FY 2022 FY 2023 FY 2024 FY 2025 FY 2026 5-Year
----------------------------------------------------------------------------------------------------------------
-$3 -$179 -$184 -$190 -$195 -$751
----------------------------------------------------------------------------------------------------------------
[[Page 7019]]
While this is a savings for the Federal government in meal
reimbursements, it transfers the costs of preparing school meals to
the households. Given the time it takes to prepare meals and higher
food costs due to inflation and not being able to purchase foods in
bulk, it is likely that the costs to the households would be higher
than just the Federal reimbursement levels. Lunches consumed from
school are, on average, the most nutritious compared to lunches from
home or other places, and students consuming school lunch were more
likely to consume milk, fruits, vegetables than students who did not
eat a school lunch.\129\ It would take additional time and resources
for households to prepare lunches that are equivalent in nutritional
value. This could pose hardships for households, especially for
those with children approved for free or reduced-price meals.
---------------------------------------------------------------------------
\129\ 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.
---------------------------------------------------------------------------
Summary
As noted earlier, this rule is intended to support the
transition from COVID-19 operations and to allow time for a more
long-term comprehensive rulemaking process to further update the
standards to reflect the Dietary Guidelines for Americans, 2020-
2025.\130\ This rule makes adjustments from the proposed rule to
continue efforts to improve the nutrition of school meals while
maintaining operational feasibility. Most of the impacts associated
with this rule are in the form of shifts in purchasing patterns and
costs incurred by the schools to procure additional products to meet
the standards and increases in labor. Costs in this section may not
actually be incurred but reflect the potential value of the changes
in this rule and impacts absent this rule.
---------------------------------------------------------------------------
\130\ The new final rule is anticipated to be in effect in time
for SY 2024-2025.
Table 11--Estimated Annual Increase and Reduction in School Costs
[Millions]
------------------------------------------------------------------------
------------------------------------------------------------------------
ESTIMATED ANNUAL COSTS MOVING TO 2012 STANDARDS
------------------------------------------------------------------------
MILK (NO LOW FAT FLAVORED).............................. -$13
100 PERCENT WHOLE GRAIN-RICH............................ 378
SODIUM FINAL TARGET..................................... 975
---------------
TOTAL............................................... 1,341
---------------
PER MEAL........................................ 0.18
------------------------------------------------------------------------
ESTIMATED ANNUAL COSTS OF FINAL RULE
------------------------------------------------------------------------
MILK (LOW FAT FLAVORED ALLOWED)......................... 13
80 PERCENT WHOLE GRAIN-RICH............................. 76
SODIUM TARGET 1 AND 1A.................................. 98
---------------
TOTAL............................................... 187
---------------
PER MEAL........................................ 0.03
------------------------------------------------------------------------
ESTIMATED ANNUAL REDUCTIONS WITH FINAL RULE COMPARED TO 2012 STANDARDS
------------------------------------------------------------------------
MILK (LOW FAT FLAVORED ALLOWED)......................... 13
80 PERCENT WHOLE GRAIN-RICH............................. -303
SODIUM TARGET 1 AND 1A.................................. -780
---------------
TOTAL............................................... -1,069
---------------
PER MEAL........................................ -0.15
------------------------------------------------------------------------
If the 2012 standards for milk, whole grain, and sodium are
fully implemented in SY 2022-2023, it will cost schools $0.18 cents
per lunch and breakfast in food and labor costs. Impacts to the
market will be similar in magnitude as purchasing patterns shift to
encompass more whole grain-rich items and ingredients for scratch
cooking. The shifts would primarily occur from enriched to whole
grain-rich products to the meet the grain requirement and from
prepackaged foods with higher sodium levels to other food, such as
more fruits and vegetables and ingredients to support more scratch
cooking. The milk purchases will shift away from flavored low-fat to
flavored fat-free varieties, which will offset total costs since
flavored low-fat varieties are slightly more expensive than flavored
fat-free varieties. Total annual costs associated with restoring the
2012 standards in SY 2022-2023 are estimated at $1.3 billion the
first year to make this transition based on progress to-date in
implementing the 2012 standards. If progress regressed from SY 2014-
2015 due to uncertainty in the requirements over the years and
COVID-19 impacts, costs are estimated to be closer to $1.7 billion
the first year or $0.24 more per breakfast and lunch.
Estimated annual costs associated with moving to the
requirements in this rule are $187 million the first year or $0.03
more per lunch and breakfast. These costs are associated with
purchasing flavored low-fat milk and more whole grain-rich products.
There are also some costs associated with schools that still need to
move to Target 1 for NSLP and SBP and Target 1A for NSLP in SY 2023-
2024 through purchasing shifts to lower sodium products and
increases in scratch cooking. If all flavored fat-free milk is
substituted with flavored low-fat milk, and schools regressed in
whole grain-rich progress compared to SY 2014-2015, this rule is
estimated to cost $665 million the first year or $0.09 more per
meal.
This rule is estimated to reduce impacts to schools by $0.15 per
meal or $1.1 billion in the first year by reducing the requirement
from serving exclusively whole grain-rich products to 80 percent
whole grain-rich products and holding Sodium Target 1 for SY 2022-
2023 for NSLP and SBP and moving to Target 1A for NSLP in SY 2023-
2024. There is an increase in costs due to allowing flavored low-fat
milk, which tends to cost slightly more than flavored fat-free
milk.\131\
---------------------------------------------------------------------------
\131\ Voluntary incurring of a cost is likely associated with
benefits that are difficult to quantify--potentially, in this case,
including reduced food waste.
---------------------------------------------------------------------------
This rule provides achievable standards while USDA engages in
more comprehensive long-term rulemaking to further update the
[[Page 7020]]
meal standards. These costs assume relatively stable participation
over the 5-years with SY 2022-2023 projected to return to pre-
pandemic meal service levels.
Table 12--Estimated 5-Year Costs and Reduction
[Millions]
--------------------------------------------------------------------------------------------------------------------------------------------------------
FY 2022 FY 2023 FY 2024 FY 2025 FY 2026 5-Year
--------------------------------------------------------------------------------------------------------------------------------------------------------
ESTIMATED COSTS MOVING TO 2012 STANDARDS
--------------------------------------------------------------------------------------------------------------------------------------------------------
MILK (NO FLAVORED LOW-FAT).............................. -$2 -$13 -$13 -$14 -$14 -$56
100 PERCENT WHOLE GRAIN-RICH............................ 61 378 386 394 402 1,620
SODIUM FINAL TARGET..................................... 156 975 995 1,015 1,035 4,176
-----------------------------------------------------------------------------------------------
TOTAL............................................... $214 $1,341 $1,367 $1,395 $1,423 $5,740
--------------------------------------------------------------------------------------------------------------------------------------------------------
ESTIMATED COSTS OF FINAL RULE
--------------------------------------------------------------------------------------------------------------------------------------------------------
MILK (FLAVORED LOW-FAT ALLOWED)......................... 2 13 13 14 14 56
80 PERCENT WHOLE GRAIN-RICH............................. 12 76 77 79 80 324
SODIUM TARGET 1 AND 1A.................................. 16 98 100 102 104 421
-----------------------------------------------------------------------------------------------
TOTAL............................................... 30 187 191 195 199 802
--------------------------------------------------------------------------------------------------------------------------------------------------------
ESTIMATED REDUCTION IN COSTS DUE TO FINAL RULE
--------------------------------------------------------------------------------------------------------------------------------------------------------
MILK (FLAVORED LOW-FAT ALLOWED)......................... 2 13 13 14 14 56
80 PERCENT WHOLE GRAIN-RICH............................. -48 -303 -309 -315 -321 -1,296
SODIUM TARGET 1 AND 1A.................................. -125 -780 -795 -811 -827 -3,338
-----------------------------------------------------------------------------------------------
TOTAL............................................... -171 -1,069 -1,090 -1,112 -1,134 -4,577
--------------------------------------------------------------------------------------------------------------------------------------------------------
The number of schools dropping out of the programs will reduce
the number of meals served if 2012 standards are restored. This will
reduce the costs associated with returning to the 2012 standards by
3 percent or an annual reduction of $40 million due to schools
dropping out of the school meal programs and less children
participating.
Table 13--Interaction Between 2012 Standards Cost and Schools Leaving NSLP and SBP
[Millions]
--------------------------------------------------------------------------------------------------------------------------------------------------------
FY 2022 FY 2023 FY 2024 FY 2025 FY 2026 5-Year
--------------------------------------------------------------------------------------------------------------------------------------------------------
$208 $1,300 $1,326 $1,354 $1,382 $5,362
--------------------------------------------------------------------------------------------------------------------------------------------------------
Uncertainties
School Meal Student Participation
As noted earlier, participation for the base estimates is
assumed to mirror pre-pandemic levels and then stabilize at a rate
of about a 2 percent increase from year to year. Long-term
participation impacts of the pandemic are unknown, and a full
rebound may not occur. There is also the chance participation will
increase as most schools have been offering meals at no charge to
students. Households may have realized the benefits of school meals
during the pandemic, which may cause children to participate at
higher rates even as schools return to standard operations. This
sensitivity analysis assumes a participation increase and decrease
of 5 percent to measure the impact of participation changes on the
estimated impacts of this rule and returning to the 2012 standards
absent this rule. This analysis does not take into consideration
potential economies of scale: As more meals are served, schools may
be able to reduce costs through bulk purchasing and preparing meals
at a lower per meal cost. These costs are compared to the base
analysis costs for the first year of $1.3 billion to return to the
2012 standards and $187 million for this final rule.
Table 14--Projected Costs by Participation Change
[Millions]
------------------------------------------------------------------------
1-Year 5-Year
------------------------------------------------------------------------
ESTIMATED COSTS MOVING TO 2012 STANDARDS
------------------------------------------------------------------------
5 PERCENT PARTICIPATION INCREASE.. $1,408 $6,292
5 PERCENT PARTICIPATION DECREASE.. 1,274 4,928
------------------------------------------------------------------------
ESTIMATED COSTS OF FINAL RULE
------------------------------------------------------------------------
5 PERCENT PARTICIPATION INCREASE.. 197 879
5 PERCENT PARTICIPATION DECREASE.. 178 689
------------------------------------------------------------------------
[[Page 7021]]
Grain Cost Difference
The base analysis assumed that there is currently about a 15
percent price increase for whole grain-rich items compared to
enriched grain items. This assumption was based on decreasing the 34
percent assumed mark up in whole grain-rich prices in the Regulatory
Impact Analysis for the 2012 rule. Most of the grain items offered
in school meals in SY 2014-2015 were whole grain-rich, as USDA Foods
and the broader school food industry have increased whole grain
offerings over the years. This reduction was assumed to be about
half the 34 percent; however, this was adjusted based on data
supporting a reduction in the 34 percent but unable to be
quantified. The impacts estimated below are based on a 30 percent
and 5 percent price increase for whole grain-rich products compared
to enriched grain products. This gives a sense of the potential
range of costs associated with the whole grain-rich requirements in
this rule, and in the 2012 rule. These estimates are compared to the
base analysis estimates of $379 million to go to the 2012 standards
and $76 million for this rule.
Table 15--Estimated Costs of Increasing Whole Grain-Rich Items by Whole
Grain-Rich Cost Increase Level
[Millions]
------------------------------------------------------------------------
Expected annual
cost (increasing High annual cost
Requirement change from 75 percent (increasing from
WGR) 50 percent WGR)
------------------------------------------------------------------------
ASSUMING A 30 PERCENT COST INCREASE FOR WHOLE GRAIN-RICH ITEMS
------------------------------------------------------------------------
INCREASING TO 100 PERCENT......... $757 $1,513
INCREASING TO 80 PERCENT.......... $151 908
------------------------------------------------------------------------
ASSUMING A 5 PERCENT COST INCREASE FOR WHOLE GRAIN-RICH ITEMS
------------------------------------------------------------------------
INCREASING TO 100 PERCENT......... 126 252
INCREASING TO 80 PERCENT.......... 25 151
------------------------------------------------------------------------
Labor Hours for Scratch Cooking
As noted, until lower sodium products are more readily available
in the school food market, USDA expect that schools would rely on
more labor-intensive food preparation, including scratch cooking, to
meet lower sodium standards. The assumption that it would take about
2 hours a day to increase scratch cooking to support sodium
reduction was based on a general concept that about an hour is spent
on food preparation and clean up a day.\132\ For the sake of the
base analysis, this time is doubled to two hours to reflect the
average increased time for bulk scratch cooking across schools. This
may be an underestimate especially absent this rule and requiring
schools to quickly pivot to scratch cooking possibly for the first
time. It may take longer to plan recipes and successfully prepare
meals as well as obtain the necessary equipment, resources, and
staff to support additional scratch cooking. This analysis increases
the labor hours to 20 hours per week or 4 hours per day to estimate
the increased costs for additional hours dedicated to scratch
cooking.
---------------------------------------------------------------------------
\132\ Table A-1. Time spent in detailed primary activities and
percent of the civilian population engaging in each activity,
averages per day by sex, 2019 annual averages (bls.gov).
Table 16--Estimated Increase in Sodium Costs for 4 Hours/Day
----------------------------------------------------------------------------------------------------------------
Estimated labor Estimated food Estimated total
Target costs costs costs
----------------------------------------------------------------------------------------------------------------
TARGET 1 IN SY 2022-2023; TARGET 1A IN SY 2023-2024.... $97 $97 $194
FINAL TARGET IN SY 2022-2023........................... 877 877 1,754
----------------------------------------------------------------------------------------------------------------
D. Benefits
This final rule aligns with progress implementing the 2012 meal
standards and provides schools the ability to transition from COVID-
19 operations. It is not expected schools will need to make
significant modifications to their typical operations and resources
to meet the requirements in this final rule. This rule is to support
schools recovering from significant supply chain disruptions, which
have made it difficult to obtain food needed to meet certain meal
pattern requirements and provide the necessary time for USDA to make
long term changes to continue to improve the nutritional content of
school meals.
School meals are an important source of food for almost 30
million children each school day and have served as critical
nutrition support during the COVID-19 pandemic. During the COVID-19
pandemic, about 1 in 10 adults (25 million) reported that they or
their families have sometimes or often not had enough food to eat in
the last 7 days. Food hardship rates were higher for Black and
Hispanic adults, with 1 and 5 Black adults, and 1 in 6 Hispanic
adults, reporting that they or their families have sometimes or
often not had enough to eat in the last 7 days. Families with
children were also more likely to experience hardship, with 49
percent more frequent reports of food insufficiency compared to
those without children. Schools served an important source of food
assistance during the pandemic. Families reporting receiving free
meals or groceries during the last 7 days reported schools as the
most common source of this assistance.\133\
---------------------------------------------------------------------------
\133\ USDA internal analysis of the Census Household Pulse data:
Household Pulse Survey Data Tables (census.gov).
---------------------------------------------------------------------------
The nutrition content of school meals has already significantly
increased and is leading to long term dietary improvements among
school children. As noted earlier, total HEI-2010 scores for lunches
consumed were higher for NSLP participants, regardless of income,
compared to nonparticipants, and NSLP participants' lunches had
higher scores for of dairy, whole grains, and vegetables and lower
concentrations of refined grains and empty calories.\134\ Another
study that evaluated diet quality trends by food source among U.S.
children and adults and by different sociodemographic subgroups
found that the quality of foods (meals, snacks, and beverages)
consumed from school improved significantly without population
disparities. These findings suggest that the 2012 meal standards
produced significant, specific, and equitable changes in dietary
quality of school foods. The increase in dietary quality of foods
consumed from school was primarily driven by significant improvement
in scores
[[Page 7022]]
for whole grains, saturated fat, and sodium.\135\
---------------------------------------------------------------------------
\134\ 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/2072-6643/12/12/3891.
\135\ 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 final rule maintains and advances these nutritional
improvements while USDA works to further strengthen the school meal
pattern requirements through a permanent rulemaking based on a
comprehensive review of the Dietary Guidelines for Americans, 2020-
2025. Taking time to incorporate the latest science is imperative.
The Dietary Guidelines note that taste preference for salty foods
may be established early in life, and that early food preference can
influence later food choices. In adults, there is moderate to strong
evidence for a causal and intake-response relationship between
sodium intake and cardiovascular risk factors, including
hypertension.\136\ Reducing daily sodium intake down to the CDRR
reduces these risks and would particularly benefit groups with
higher prevalence and risk for hypertension and cardiovascular
disease, including older adults and certain racial and ethnic
groups, particularly non-Hispanic Black groups. In SY 2014-2015
about 73 percent of Non-Hispanic Black children usually participated
in NSLP and about 46 percent participated in SBP. On average,
elementary school participation was higher than middle and high
school participation in both the NSLP and SBP \137\ stressing the
importance of building on the success of school meals in supporting
healthy eating.
---------------------------------------------------------------------------
\136\ National Academies of Sciences, Engineering, and Medicine
2019. Dietary Reference Intakes for Sodium and Potassium.
Washington, DC: The National Academies Press. https://doi.org/10.17226/25353.
\137\ 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 online
at: www.fns.usda.gov/research-and-analysis.
---------------------------------------------------------------------------
Returning to the 2012 standards in SY 2022-2023 would be
unrealistic for schools, with an estimated $1.3 billion in food and
labor costs to support more scratch cooking and food purchases
shifts but also from an operational standpoint. Standing up
increased scratch cooking takes time to execute successfully,
including time for students to provide feedback through taste tests
and other activities to increase acceptance. Manufacturers need time
to test and reformulate whole grain-rich and lower sodium products
for the school market for schools to employ a comprehensive sodium
reduction plan.
The COVID-19 nationwide waivers significantly changed program
operations, and time is needed to transition back to typical meal
service. The timing of this rule is important as it provides time
for schools to transition, but also leverages the important lessons
from the pandemic on the importance of strong nutrition standards.
The COVID-19 pandemic and corresponding school closures greatly
disrupted the lives of children, likely resulting in increased
stress, irregular mealtimes, less access to nutritious foods,
increased screen time, and fewer opportunities for physical
activity. Families already disproportionally affected by obesity
risk factors likely had additional interruptions in income, food,
and other social factors that impact obesity risk and health
138 139 This rule is estimated to potentially require
$187 million in additional resources or changes in purchasing
patterns to implement; however, it saves an estimated $0.15 per meal
if schools were required to fully meet all 2012 standards in SY
2022-2023. Schools would face extreme challenge immediately
returning to the 2012 standards from COVD-19 operations which would
be compounded by the supply chain disruptions. This rule strikes the
necessary balance in operational feasibility and recognizing the
critical need to maintain strong achievable school nutrition
standards during this transition period to continue to improve the
diets of school children.
---------------------------------------------------------------------------
\138\ Andrew G. Rundle1,2, Yoosun Park3, Julie B. Herbstman4,
Eliza W. Kinsey1, and Y. Claire Wang, COVID-19-Related School
Closings and Risk of Weight Gain Among Children.
\139\ Lange SJ, Kompaniyets L, Freedman DS, et al. Longitudinal
Trends in Body Mass Index Before and During the COVID-19 Pandemic
Among Persons Aged 2-19 Years--United States, 2018-2020. MMWR Morb
Mortal Wkly Rep 2021;70:1278-1283. DOI: http://dx.doi.org/10.15585/mmwr.mm7037a3.
---------------------------------------------------------------------------
E. Alternatives
Whole Grain-Rich Requirement at 60 Percent
One consideration when developing this rule was to set a
requirement that schools must offer at least 60 percent of grain
offerings as whole grain-rich instead of 80 percent. As noted
earlier, in SY 2014-2015, schools were on average serving about 70
percent of grains as whole grain-rich. While the 60 percent
threshold would likely be easier to meet, it could be a step back in
whole grain-rich progress. If all schools regressed back to the
requirement that only half of grain offerings had to be whole grain-
rich, the 60 percent would have slightly increased progress. USDA
has no evidence to suggest that schools regressed in whole grain-
rich offerings before the pandemic and recognizes the important role
whole grains play in a nutritious diet. Using the same methodology
as the base whole grain-rich analysis, it would cost about $151
million for schools to move to 60 percent of grain offerings as
whole grain-rich. This estimate assumes that all schools moved back
to the requirement of just half of grains offering as whole grain-
rich. This is equivalent to the $454 million for all schools to move
from half of grain offerings as whole grain-rich to 80 percent whole
grain-rich offerings.
Table 17--Estimated Costs of Increasing Whole Grain-Rich Items
[Millions]
------------------------------------------------------------------------
Expected annual
cost (increasing High annual cost
Threshold from 75 percent (increasing from
WGR) 50 percent WGR)
------------------------------------------------------------------------
INCREASING TO 100 PERCENT......... $378 $757
INCREASING TO 80 PERCENT.......... 76 454
INCREASING TO 60 PERCENT.......... 0 151
------------------------------------------------------------------------
Sodium Target 1 for SY 2022-2023 and Sodium Target 2 for SY 2023-2024
Another consideration during the decision process for this rule
was to require schools to meet Sodium Target 1 in SY 2022-2023 and
move to Sodium Target 2 in SY 2023-2024. As noted earlier, the
sodium timeline from the 2012 standards was never fully implemented
and schools have only been required to reach Sodium Target 1. Sodium
Target 2 for SBP is about a 10 percent reduction from Sodium Target
1 and a 24 percent reduction for NSLP. Average sodium levels for
prepared SBP breakfasts in SY 2014-2015 were about 2 percent to 5
percent higher than Sodium Target 2, and average sodium levels for
NSLP lunches were about 14 percent to 20 percent higher than Sodium
Target 2. This would still be a substantial reduction for schools to
achieve in one school year. Originally, Sodium Target 2 was meant to
go into effect 3 years after schools were required to meet Sodium
Target 1. These difficulties would be compounded by prolonged
uncertainty regarding the Sodium Targets, industry needing more time
to reformulate products with lower sodium levels, and the challenges
schools may face transitioning from COVID-19 operations and supply
chain disruptions. Using the same methodology as the base sodium
estimates, it is estimated that schools would require at least 1
hour a day of additional scratch cooking to meet Sodium Target 2 as
well as the equivalent amount to support changes in purchasing
patterns. It is estimated to cost
[[Page 7023]]
about $244 million in labor and the same amount in food costs for a
total of $488 million for schools to reach Sodium Target 2. Along
with the costs to reach Target 2, it would cost an additional $98
million for 10 percent of schools to comply with Target 1. This is
an annual total of $585 million for food and labor costs for schools
to meet Sodium Target 2. The base analysis estimate for this rule
only included the $98 million for the 10 percent of meals to reach
Target 1 and Target 1A.
Table 18--Estimated Costs by Sodium Target
[Millions]
----------------------------------------------------------------------------------------------------------------
Average hours
Target of additional Estimated Estimated food Estimated
labor per day labor costs costs total costs
----------------------------------------------------------------------------------------------------------------
TARGET 1 IN SY 2022-2023; TARGET 1A IN SY 2023- 1.0 $49 $49 $98
2024..........................................
FINAL TARGET IN SY 2022-2023................... 1.8 438.5 438.5 877
TARGET 2 IN SY 2023-2024....................... 1.0 244 244 488
----------------------------------------------------------------------------------------------------------------
[FR Doc. 2022-02327 Filed 2-4-22; 8:45 am]
BILLING CODE 3410-30-P
