# Child Nutrition Programs: Revisions to Meal Patterns Consistent With the 2020 Dietary Guidelines for Americans > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2023-02102 ## Record - **Collection:** Federal Register - **Document type:** Proposed Rule - **Published:** February 7, 2023 - **Citation:** 88 FR 8050 ## Text DEPARTMENT OF AGRICULTURE Food and Nutrition Service 7 CFR Part 210, 215, 220, 225 and 226 [FNS-2022-0043] RIN 0584-AE88 Child Nutrition Programs: Revisions to Meal Patterns Consistent With the 2020 Dietary Guidelines for Americans AGENCY: Food and Nutrition Service (FNS), U.S. Department of Agriculture (USDA). ACTION: Proposed rule with request for comments. SUMMARY: This rulemaking proposes long-term school nutrition standards based on the Dietary Guidelines for Americans, 2020-2025, and feedback the U.S. Department of Agriculture received from child nutrition program stakeholders during a robust stakeholder engagement campaign. Notably, this rulemaking proposes new added sugars standards for the school lunch and breakfast programs. It also proposes gradually reducing school meal sodium limits, consistent with research recommending lower sodium intake beginning early in life to reduce children's risk of chronic disease. In addition to addressing nutrition standards, this proposes measures to strengthen the Buy American provision in the school meal programs. As described below, this document also addresses long-term milk and whole grain standards; proposes a variety of changes to school meal requirements; addresses proposals from a prior rulemaking; and makes several technical corrections to child nutrition program regulations. The U.S. Department of Agriculture expects to issue a final rule in time for schools to plan for school year 2024-2025. DATES: Written comments on this proposed rule should be received on or before April 10, 2023 to receive consideration. ADDRESSES: The Food and Nutrition Service, USDA, invites interested persons to submit written comments on the provisions of this proposed rule. Comments related to this proposed rule may be submitted in writing by one of the following methods: • Online (preferred): Go to https://www.regulations.gov and follow the online instructions for submitting comments. • Mail: Send comments to School Meals Policy Division, Food and Nutrition Service, P.O. Box 9233, Reston, Virginia 20195. All written comments submitted in response to this proposed 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 https://www.regulations.gov . FOR FURTHER INFORMATION CONTACT: Tina Namian, Director, School Meals Policy Division—4th floor, Food and Nutrition Service, 1320 Braddock Place, Alexandria, VA 22314; telephone: 703-305-2590. SUPPLEMENTARY INFORMATION: Table of Contents 1. Background 2. Added Sugars 3. Milk 4. Whole Grains 5. Sodium 6. Menu Planning Options for American Indian and Alaska Native Students 7. Traditional Foods 8. Afterschool Snacks 9. Substituting Vegetables for Fruits at Breakfast 10. Nuts and Seeds 11. Competitive Foods—Hummus Exemption 12. Professional Standards 13. Buy American 13A: Limited Exceptions to the Buy American Requirement 13B: Exception Documentation and Reporting Requirements 13C: Procurement Procedures 13D: Definition of “Substantially” 13E: Clarification of Requirements for Harvested Farmed and Wild Caught Fish 14. Geographic Preference 15. Miscellaneous Changes 16. Summary of Changes 17. Proposals from Prior USDA Rulemaking 18. Procedural Matters Regulatory Impact Analysis Table of Abbreviations CACFP—Child and Adult Care Food Program CNA—Child Nutrition Act CN-OPS—Child Nutrition Operations Study FDA—U.S. Food and Drug Administration FNS—Food and Nutrition Service HEI—Healthy Eating Index ICN—Institute of Child Nutrition NASEM—National Academies of Science, Engineering, and Medicine NSLA—National School Lunch Act NSLP—National School Lunch Program RFI—Request for Information SBP—School Breakfast Program SFSP—Summer Food Service Program SMP—Special Milk Program SY—School Year USDA—United States Department of Agriculture Section 1: Background On February 7, 2022, the U.S. Department of Agriculture (USDA) published Child Nutrition Programs: Transitional Standards for Milk, Whole Grains, and Sodium 1 to support schools after more than two years of serving meals under pandemic conditions. Instead of making permanent changes, this rule, hereafter referred to as “the transitional standards rule,” began a multi-stage approach to strengthen the school meal nutrition standards. USDA intended for the transitional standards rule to apply for two school years, during which it would provide immediate relief as schools return to traditional school meal service following extended use of COVID-19 meal pattern flexibilities. This proposed rule begins the next stage, where USDA will further improve the school meal pattern requirements through this notice-and-comment rulemaking based on a comprehensive review of the Dietary Guidelines for Americans, 2020-2025 (Dietary Guidelines), robust stakeholder input on school nutrition standards, and lessons learned from prior rulemakings. 2 With this rulemaking, USDA is integrating each of these important factors in a way that puts children's health at the forefront while also ensuring that the nutrition standards are achievable and set schools up for success. 1 Child Nutrition Programs: Transitional Standards for Milk, Whole Grains, and Sodium (87 FR 6984, February 7, 2022). Available at: https://www.federalregister.gov/documents/2022/02/07/2022-02327/child-nutrition-programs-transitional-standards-for-milk-whole-grains-and-sodium . 2 U.S. Department of Agriculture and U.S. Department of Health and Human Services. 2020-2025 Dietary Guidelines for Americans. 9th Edition. December 2020. Available at: https://www.dietaryguidelines.gov/ . The transitional standards rule finalized USDA's Restoration of Milk, Whole Grains, and Sodium Flexibilities Proposed Rule (85 FR 75241, November 25, 2020) with some modifications. Effective July 1, 2022, the transitional standards rule: • Allowed local operators of the National School Lunch Program (NSLP) and School Breakfast Program (SBP) to offer flavored, low-fat milk (1 percent fat) for students in grades K through 12 and for sale as a competitive beverage. It also allowed flavored, low-fat milk in the Special Milk Program (SMP) and in the Child and Adult Care Food Program (CACFP) for participants ages 6 and older. • Required at least 80 percent of the weekly grains in the school lunch and breakfast menus to be whole grain-rich. 3 3 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. • Established Sodium Target 1 as the sodium limit for school lunch and breakfast in school year (SY) SY 2022-2023 and implemented a Sodium Interim Target 1A effective for school lunch beginning in SY 2023-2024. The transitional standards represented a middle ground between the 2012 standards for milk, whole grains, and sodium, and the temporary meal pattern waivers that many schools relied on due to the COVID-19 pandemic. 4 The 2012 standards, 5 which were a key component of the Healthy, Hunger-Free Kids Act, improved school meal standards for the first time in 15 years by increasing the availability of fruits, vegetables, whole grains, and fat-free and low-fat milk in school meals; limiting sodium and saturated fat and eliminating trans fat in school meals; and establishing calorie ranges to support age-appropriate meals for school children. Regarding milk, whole grains, and sodium, the 2012 standards allowed flavoring only in fat-free milk in the NSLP and SBP; required all grains offered in the NSLP and SBP to be whole grain-rich, effective SY 2014-2015; 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. With the transitional standards, USDA intended to balance the needs of schools as they recover from supply chain and other pandemic-related challenges, while taking measured steps towards improving nutritional quality. 4 For example, in SY 2021-2022, USDA issued a nationwide waiver allowing schools to request targeted meal pattern waivers from their State agency. See: Nationwide Waiver to Allow Specific School Meal Pattern Flexibility for SY 2021-2022. Available at: https://www.fns.usda.gov/cn/covid-19-child-nutrition-response-90 . 5 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. USDA is embarking on the next stage of updating the school nutrition standards in this proposed rulemaking to further align school meal nutrition standards with the goals of the Dietary Guidelines, 2020-2025. As described throughout this preamble, USDA worked closely with stakeholders to gather input for this proposed rule. Informed by this extensive stakeholder engagement, which allowed USDA to listen and learn from schools, advocacy organizations, industry partners, and others, USDA intends to develop standards that improve the nutritional quality of school meals based on the latest nutrition science, that are durable and built to last, and that result in meals children will enjoy. USDA encourages further stakeholder input on all aspects of this proposed rule. This preamble discusses alternatives to certain proposals. For example, for milk, USDA will consider two proposals: under one proposal, USDA would limit milk choices in elementary and middle schools (grades K-8) to a variety of unflavored milks only, while under the other proposal, USDA would maintain the current standard allowing all schools (grades K-12) to offer fat-free and low-fat milk, flavored and unflavored, in reimbursable school meals. For whole grains, USDA will consider maintaining the current requirement that at least 80 percent of the weekly grains offered are whole grain-rich, based on ounce equivalents of grains offered, and will also consider an alternative under which all grains offered must meet the whole grain-rich requirement, except that one day each school week, schools may offer enriched grains. For sodium, USDA proposes a gradual series of reductions but may adjust the frequency of the sodium reductions as well as the proposed levels for those reductions for the final rule based on public comment. As noted above, USDA encourages public input on all aspects of this proposed rule, including the alternatives provided for certain provisions. This proposed rule also addresses the Buy American provision, which requires school food authorities to purchase, to the maximum extent practicable, domestic commodities or products for use in the NSLP and SBP. The Buy American provision supports the mission of the child nutrition programs, which is to serve children nutritious meals and support American agriculture. This requirement was first implemented in the school meal programs in 1998. However, USDA understands that school food authorities and other stakeholders find the Buy American provision to be ambiguous, due to the lack of specificity in the regulation. USDA is proposing to clarify and strengthen the Buy American provision in the school meal programs. USDA expects to issue a final rule in time for schools to plan for SY 2024-2025. However, as noted throughout this preamble, not all of the standards outlined in this proposed rule would be fully implemented for SY 2024-2025. Based on stakeholder input and prior rulemaking experience, USDA intends to phase in certain requirements so that State agencies, schools, and the food industry have time to prepare for the changes (for example, see Section 2: Added Sugars and Section 5: Sodium ). This additional time will also allow USDA to provide guidance and support to State agencies and schools, so that they are well equipped to meet the updated standards upon implementation. USDA welcomes public input on the proposed implementation dates, including if delayed implementation is warranted for any provisions where it is not already specified. Additionally, in prior rulemakings, USDA has included an effective date, as well as a delayed compliance date, for certain provisions. This approach allows State and local operators to focus on technical assistance, rather than on compliance, during the initial implementation period. USDA welcomes public input on whether a similar approach should be used for this rulemaking. The remainder of Section 1: Background provides general information to explain the need for this rulemaking. Sections 2 through 15 provide specific information regarding each of the proposed changes, which includes an overview of the current standard and the proposed change. Section 16: Summary of Changes briefly summarizes all the provisions included in this proposed rule and the specific public comments requested throughout the preamble. Individuals and organizations may choose to use this summary section as an outline for submitting their public comments. Dietary Guidelines The Dietary Guidelines for Americans are the foundation of the school nutrition standards. First released in 1980, the Dietary Guidelines are jointly published by the USDA and the U.S. Department of Health and Human Services every five years. The Dietary Guidelines are required by law to be based on the preponderance of current scientific and medical knowledge. 6 They inform Federal nutrition requirements, consumer health messages, and other science-based nutrition and health education efforts. USDA is required to develop school nutrition standards that are consistent with the goals of the most recent Dietary Guidelines (National School Lunch Act, 42 U.S.C. 1758(f)) and that consider the nutrient needs of children who may be at risk for inadequate food intake and food insecurity. Following the recommendations in the Dietary Guidelines can help people lower their risk of heart disease, type 2 diabetes, and cancer. 7 6 U.S. Department of Agriculture and U.S. Department of Health and Human Services. About. Available at: https://www.dietaryguidelines.gov/about-dietary-guidelines/process/monitoring-act . 7 U.S. Department of Agriculture and U.S. Department of Health and Human Services. The Dietary Guidelines for Americans Can Help You Eat Healthy to Be Healthy. December 2020. Available at: https://www.dietaryguidelines.gov/sites/default/files/2020-12/Infographic_Eat_Healthy_Be_Healthy.pdf . The Dietary Guidelines, 2020-2025 provide four overarching recommendations: • Follow a healthy dietary pattern 8 at every life stage. 8 A dietary pattern is the combination of foods and beverages that constitutes an individual's complete dietary intake over time. This may be a description of a customary way of eating or a description of a combination of foods recommended for consumption. U.S. Department of Agriculture and U.S. Department of Health and Human Services. Dietary Guidelines for Americans, 2020-2025. 9th Edition. December 2020. Available at: https://www.dietaryguidelines.gov/ . • Customize and enjoy nutrient-dense food and beverage choices to reflect personal preferences, cultural traditions, and budgetary considerations. • Focus on meeting food group needs with nutrient-dense foods and beverages and stay within calorie limits. • Limit foods and beverages higher in added sugars, saturated fat, and sodium, and limit alcoholic beverages. Through this rulemaking, USDA is exercising broad discretion authorized by Congress to administer the school lunch and breakfast programs and ensure meal pattern standards “are consistent with the goals of the most recent” Dietary Guidelines. See 42 U.S.C. 1752, 1758(a)(1)(B), 1758(k)(1)(B), 1758(f)(1)(A), and 1758(a)(4)(B). Consistent with its historical position, USDA interprets “consistent with the goals of” the Dietary Guidelines to be a broad, deferential phrase that requires consistency with the ultimate objectives of Dietary Guidelines but not necessarily the adoption of the specific consumption requirements or specific quantitative recommendations in the Dietary Guidelines. Accordingly, through this proposed rule, USDA is working to ensure an appropriate degree of consistency between school meal standards and the Dietary Guidelines by considering operational feasibility and the ongoing recovery from the impacts of COVID-19, while also ensuring schools can plan appealing meals that encourage consumption and intake of key nutrients that are essential for children's growth and development. Through this rulemaking, USDA intends to further align school meal nutrition standards with the goals of the Dietary Guidelines, 2020-2025. This effort is described in greater detail throughout the preamble, and particularly in Section 2: Added Sugars, where USDA proposes to establish added sugars limits for the school meal programs and proposes to update the CACFP total sugars limits to align with the proposed NSLP and SBP added sugars limits for ease of operations. Healthy Eating Index The Healthy Eating Index (HEI) is a measure of diet quality used to assess how well a set of foods, such as foods provided through the school meal programs, align with the Dietary Guidelines. Overall, a higher total HEI score indicates a diet that aligns more closely with dietary recommendations. An ideal overall HEI score of 100 suggests that the set of foods is in line with the Dietary Guidelines recommendations. USDA used the HEI to measure improvements in school meals following the 2012 final rule and found that the updated standards resulted in healthier meals offered to children. 9 For example, the school lunch average total HEI score increased by 24 points (57.9 to 81.5) from SY 2009-2010 to SY 2014-2015. For school breakfast, the average total HEI score increased by 21 points (49.6 to 71.3) over the same time. 10 USDA also looked at the impact of the 2012 rule on specific meal components. The HEI component score for fruits at lunch jumped from 77 percent to 95 percent of the maximum score following the 2012 final rule, and the score for vegetables at lunch jumped from 75 percent to 82 percent. Of all the school lunch components, the score for whole grains increased the most, moving from 25 percent to 95 percent of the maximum score. At the same time, USDA recognizes that there is room for improvement in certain areas, such as sodium. While the score for sodium improved, it remains well below the maximum score, at 27 percent for lunch. With this proposed rule, USDA intends to maintain the already significant improvements in school meals, while continuing steady progress in other areas; for example, by continuing to gradually reduce sodium. 9 U.S. Department of Agriculture. School Meals Are More Nutritious After Updated Nutrition Standards. Available at: https://fns-prod.azureedge.us/sites/default/files/resource-files/SNMCS_infographic2_NutritionalQualityofSchool%20Meals.pdf . 10 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.) To see the impact of the 2012 final rule on school breakfast meal component scores, see Figure ES.17. Comparison of Healthy Eating Index—2010 Component Scores, as a Percentage of Maximum Scores, for SBP Breakfasts Served in SY 2009-2010 and SY 2014-2015: All Schools. Nutrition Security In addition to requiring that USDA develop school nutrition standards that are consistent with the goals of the most recent Dietary Guidelines, as described above, the National School Lunch Act also requires USDA to “consider the nutrient needs of children who may be at risk for inadequate food intake and food insecurity” (42 U.S.C. 1758(f)(1)(B)). Along with addressing food insecurity, 11 USDA has made addressing nutrition security a key policy priority. “Nutrition security” 12 means consistent access to the safe, healthy, affordable foods essential to health and well-being. It builds on food security by focusing on how diet quality can help reduce diet-related diseases. Nutrition security also emphasizes equity and the importance of addressing long-standing health disparities. Though poor nutrition affects every demographic, diet-related diseases disproportionately impact historically underserved communities, largely due to long-standing structural and institutional racism in the United States. 13 Promoting food and nutrition security is critical to addressing health disparities and improving health outcomes. To that end, USDA is evaluating its nutrition assistance programs to ensure that they serve all Americans equitably, removing systemic barriers that may hinder participation. 14 USDA research suggests that Black and Hispanic children participate in the school meal programs at higher rates than white children, 15 making improving the school meal nutrition standards an important part of USDA's efforts to improve access to healthy foods that promote well-being in an equitable way. 16 11 Food insecurity is the limited or uncertain availability of nutritionally adequate and safe foods or limited or uncertain ability to acquire acceptable foods in socially acceptable ways. See: U.S. Department of Agriculture. Measurement. Available at: https://www.ers.usda.gov/topics/food-nutrition-assistance/food-security-in-the-u-s/measurement/ . 12 U.S. Department of Agriculture. What is Nutrition Security? Available at: https://www.usda.gov/nutrition-security . 13 U.S. Department of Agriculture. USDA Actions on Nutrition Security. Available at: https://www.usda.gov/sites/default/files/documents/usda-actions-nutrition-security.pdf . 14 U.S. Department of Agriculture. U.S. Agriculture Secretary Tom Vilsack Highlights Key Work in 2021 to Promote Food and Nutrition Security. Available at: https://www.fns.usda.gov/news-item/usda-0024.22 . See also: U.S. Department of Agriculture, USDA Equity Action Plan in Support of Executive Order (E.O.) 13985 Advancing Racial Equity and Support for Underserved Communities through the Federal Government, February 10, 2022. Available at: https://www.usda.gov/equity/action-plan . 15 Overall, 70 percent of Hispanic and non-Hispanic Black students participated in the NSLP on the study's target day in SY 2014-2015, 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://www.fns.usda.gov/school-nutrition-and-meal-cost-study . (OMB Control Number 0584-0596, expiration date 07/31/2017.) 16 Indeed, a study published in 2021 concluded that from 2003 to 2018, the quality of foods consumed from school improved significantly without population disparities. These findings suggest that improvements to the school meal nutrition standards following the 2010 Healthy, Hunger-Free Kids Act produced significant, specific, and equitable changes in dietary quality of school foods. See: 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. USDA's work to advance nutrition security focuses on four pillars: • Meaningful support • Healthy food • Collaborative action • Equitable systems This proposed rule touches on all four pillars. It supports USDA's efforts to foster healthy eating across all life stages, with a special focus on young children, by proposing to update school meal standards to reflect the latest nutrition science. This, in turn, is expected to expand access to and increase consumption of healthy and nutritious food among school children. As discussed below, to develop this proposed rule, USDA collaborated with a variety of stakeholders, including nutrition and health advocacy groups, the education community, Tribal stakeholders, and many others. Finally, regarding the fourth pillar, USDA is taking steps to improve school meal nutrition standards for all children, including to better serve American Indian and Alaska Native children as part of its effort to prioritize equity in the school meal programs (see Section 6: Menu Planning Options for American Indian and Alaska Native Students ). Practical and Durable Standards USDA intends to develop nutrition standards that are durable and built to last. For this rulemaking, USDA recognizes that continued, meaningful improvement in the nutritional quality of meals consumed by students is best achieved by standards that are both ambitious and can be implemented successfully. USDA has incorporated lessons learned from prior rulemakings and stakeholder input (described below) by proposing ambitious changes that occur over time and in clear and predictable increments. USDA's proposed approach also reflects an understanding that changes in school meals must occur in the context of broader efforts to achieve improvements in diet quality for all Americans. School nutrition standards cannot be so far out of step with U.S. diets that they are not achievable. This is particularly important regarding standards for sodium levels, where current consumption levels far exceed dietary recommendations. In this proposal, USDA seeks to align reductions in school meal sodium levels with broader efforts to reduce sodium in the U.S. food supply being led by the Food and Drug Administration (FDA). This approach also reflects USDA's recognition that the food industry must be engaged in and support schools' efforts to meet nutrition standards by developing, marketing, and supplying products that support them. USDA is supporting this goal with the Healthy Meals Incentives initiative, which will include support for collaborative and innovative efforts by school districts, food producers, suppliers, distributors, and community partners to develop creative solutions for increasing the availability of and access to nutritious foods for school meals. Based on stakeholder input and experience with the 2012 standards, USDA also recognizes the importance of encouraging meals that meet local and cultural preferences and ensuring the nutrition standards allow them. This priority is reflected in the proposed standards. For example, the whole grain-rich proposal would allow schools to occasionally serve white rice or non-whole grain-rich tortillas, while still promoting whole grain-rich foods throughout the school week. This approach is expected to promote nutritious meals while increasing the variety of foods available for students to enjoy. Finally, USDA also acknowledges that there are unforeseeable events, such as the recent supply chain challenges, that can make it difficult for schools to fully comply with the nutrition standards in all circumstances. In response to recent challenges, USDA has provided waivers to the requirement for State agencies to apply fiscal action for missing food components, for missing production records, and for repeated violations involving milk type and vegetable subgroups due to supply chain disruptions. 17 State agencies also have discretion regarding fiscal action for repeat violations of the requirements for food quantities, whole grain-rich foods, and the dietary specifications for calories, saturated fat, sodium, and trans fat through current program regulations, and USDA has encouraged States to use this flexibility in appropriate circumstances. 18 Emergency procurement flexibilities at 2 CFR 200.320(c) may also be a resource for State agencies and schools facing challenges meeting the meal pattern requirements due to supply chain challenges or other emergencies. These flexibilities, when used appropriately, can provide relief in those circumstances when it is not feasible for schools to meet all aspects of strong nutrition standards in every instance. 17 See: 7 CFR 210.18(l)(2)(i) and (ii). 18 See: 7 CFR 210.18(l)(2)(iii) and (iv). Stakeholder Engagement: Listening Sessions To develop these proposed standards, USDA relied on input from key child nutrition program stakeholders. Throughout 2022, USDA held over 50 listening sessions with State agencies, school food authorities, advocacy organizations (including a parent organization), Tribal stakeholders, professional associations, food manufacturers, and other Federal agencies. During these conversations, participants shared their insights and perspectives on developing ambitious, achievable, and durable standards to improve children's health. These conversations were part of USDA's effort to build consensus on long-term solutions for healthier school meals through collaborative action. Stakeholders also provided important insight into the successes and challenges that schools experience implementing the nutrition standards, including input on the support, guidance, and resources needed from USDA to improve school meals for children. Several themes emerged from these discussions. For example, USDA heard that uncertainty around school meal nutrition standards makes product development and planning difficult and that clear expectations and consistent standards are needed. Having time to plan for updated standards, in advance of implementation, is important to many stakeholders. Listening session participants also offered specific input on the types of standards they prefer. For example, regarding sodium limits, many stakeholders preferred continuing with weekly limits rather than moving to per-product limits. Participants suggested that weekly limits give schools more flexibility to craft weekly menus that may include some higher sodium foods, provided they are balanced out with lower sodium foods on other days. A number of listening sessions included a discussion about the financial challenges facing school meal operations. Several participants raised concerns about the standard meal reimbursement rates, which in their view are too low. Participants also expressed concerns about their inability to pay competitive salaries to their staff, who are stretched thin and do not always have the financial support they need to be successful. Cost constraints limit school food service professionals' ability to offer the types of meals and variety of foods that children enjoy, which participants argued negatively impacts student participation. These challenges are exacerbated by current supply chain issues and inflation, which listening session participants emphasized significantly impact school meal operations. Many participants urged USDA to work with the food industry to make sure products that meet the standards are available to schools at reasonable prices. Listening sessions with the food industry focused largely on the time and cost associated with reformulating food products to meet updated standards. Participants representing the food industry and schools emphasized the importance of reformulating products or recipes in a way that maintains palatability and children's participation; some were concerned that too much change in the formulation of products will negatively impact the taste of foods that children enjoy. These challenges are discussed in greater detail throughout the preamble. Some participants suggested that USDA do more to communicate the value of school meals to families and communities. For example, participants recommended USDA develop education campaigns to share the value of improved nutrition standards. Others suggested highlighting other benefits of school meal participation, such as the time families can save by not having to pack a lunch from home. Several participants expressed general support for the school meal nutrition standards and encouraged USDA to go further, for example, by adopting a nutrition standard for added sugars. USDA greatly appreciates the individuals and organizations that participated in the listening sessions throughout 2022. Through these listening sessions, USDA gained valuable insights into the successes and challenges that schools experience implementing the school meal standards. By hearing the on-the-ground perspective of individuals who work in schools every day, USDA better understands the support that schools will need to be successful in implementing updated standards. As part of its effort to support schools working to meet updated nutrition standards, in June 2022, USDA announced the Healthy Meals Incentives initiative, 19 which represents a $100 million investment in nutritious school meals. The Healthy Meals Incentives initiative will improve the nutritional quality of school meals through food systems transformation, school food authority recognition and technical assistance, the generation and sharing of innovative ideas and tested practices, and grants. The recognition program includes a specific focus on celebrating schools that exceed nutrition requirements for sodium and whole grains, reduce added sugars in school breakfasts, implement innovative practices in scratch cooking and nutrition education, and provide meals that reflect the cultures of their students. 19 U.S. Department of Agriculture. Healthy Meals Incentives. Available at: https://www.fns.usda.gov/cnp/healthy-meals-incentives . It is also important to recognize that at the time of these listening sessions, in spring and summer 2022, school meal stakeholders at all levels were facing significant challenges related to the COVID-19 pandemic and associated supply chain issues. They were also preparing to transition off of nationwide child nutrition program waivers for the first time in over two years due to the expiration of USDA's statutory nationwide waiver authority. USDA recognizes that these issues present immediate challenges for schools, but also appreciates the importance of looking to the future and prioritizing children's health in the long-term. This rulemaking will allow a phase-in period, during which USDA will provide implementation support to State agencies and schools. As discussed further in the section-by-section analysis, USDA also intends to work with the food industry and other partners to ensure schools have adequate products to meet the standards, particularly for sodium and added sugars. USDA welcomes public input on other steps the Department can take to ensure schools successfully meet the proposed standards. Stakeholder Engagement: Public Comments on Transitional Standards Rule Unlike most final rules, USDA requested public comment on the transitional standards rule. In addition to accepting comments on the provisions in the rule, interested persons were invited to comment on “considerations for future rulemaking related to the school nutrition requirements.” USDA appreciates public interest in the transitional standards rule. During the 45-day comment period (February 7, 2022, through March 24, 2022), USDA received over 8,000 comments. Of the total, about 7,000 comments were form letter copies from 12 form letter campaigns and about 1,100 were unique submissions. USDA worked in collaboration with a data analysis company to code and analyze the public comments using a commercial web-based software product. The Summary of Public Comments report is available under the Supporting Documentation tab in docket FNS-2020-0038. All comments are posted online at https://www.regulations.gov . See docket FNS-2020-0038-2936, Child Nutrition Programs: Transitional Standards for Milk, Whole Grains, and Sodium. The following paragraphs describe general themes from the public comments. Many respondents specifically addressed added sugars, milk, whole grains, and sodium; feedback from these comments is included in the specific sections of the preamble, as applicable. Public Comments: Need for Transitional Standards Many respondents cited the benefits of the transitional standards rule, which they suggested will help schools get back on track following COVID-19 operations. An industry respondent asserted that the transitional standards rule balanced the need for near-term flexibility while still providing nutritious foods to school children. They expressed support for USDA's efforts to work towards achievable and durable school meal nutrition standards that align with the current Dietary Guidelines. Other respondents agreed, noting that the pandemic has impacted schools extensively and that fully returning to the 2012 standards for milk, whole grains, and sodium may not be feasible for schools and children. An advocacy organization focused on nutrition science argued that the unprecedented supply chain disruptions have placed immense challenges on schools, and that the temporary relief provided by the transitional standards rule is warranted. Public Comments: Nutrition and Health Many respondents noted the benefits of strong nutrition standards and the important role that schools play in providing access to nutritious foods. Respondents emphasized that developing healthy habits in childhood is important for lifelong health and noted the value of adopting science-based standards that align with the goals of the Dietary Guidelines in the long-term. They also mentioned the importance of nutritious meals in helping children succeed academically and noted that many children consume a substantial portion of their dietary intake during the school day. Respondents cited concerns about diet-related chronic diseases, such as diabetes and high blood pressure. They emphasized the role that excess sodium and added sugars play in increasing children's risk of developing these diseases and noted that improving the long-term nutrition standards could help to address these serious health concerns. One respondent stated that they understood that, during the pandemic, the focus was on maintaining meal access, but that transitioning back to more nutritious meals is crucial for children's long-term health. Another respondent agreed, noting the importance of providing flexibility and a “ramp” to stronger nutrition standards following the pandemic. Other respondents described the transitional standards as a step in the right direction but emphasized the need to do more to improve the healthfulness of school meals. For example, for the long-term standards, respondents recommended including a limit on added sugars, significantly reducing sodium in school foods, and increasing whole grains. One respondent cited the importance of ensuring school meal standards encourage long-term healthy habits. Another respondent suggested that reducing sodium and added sugars in foods marketed to children outside of the school meal programs, across the U.S. food supply, would improve overall health outcomes for children. Public Comments: Product Availability Several respondents noted the importance of ensuring products that meet school meal standards are widely available. For example, one respondent questioned whether manufacturers would be willing to reformulate their products to meet USDA standards and expressed concern about price points. They claimed that school nutrition programs are a very “hard customer” already. Similarly, another respondent asserted that the food industry is no longer making specialty products for schools, making it difficult for schools to find compliant products. A school food service respondent in a rural community also expressed concern about their ability to find products, stating that manufacturers have discontinued their school food lines due to decreased staff and raw material availability. This respondent also asserted that some vendors have stopped providing foods to schools because the school food market is not profitable enough. A trade association noted that school meal programs are facing higher costs, including food and transportation costs, and that supply chain challenges could continue. They suggested that USDA establish realistic standards and phase in any new standards over time. Public Comments: Staffing Challenges A few respondents cited challenges in the school food labor force, noting that funding and low pay for staff at their school make it difficult to serve fresh and homemade foods. Respondents expressed a strong commitment to nutritious school meals but faced difficulty due to staffing challenges and rising food costs. Another respondent agreed, asserting that they would like to see more fresh food offered at their school, but they simply do not have the time or the staff to cook fresh meals daily. Citing concerns about funding, one school food service respondent asserted that budget constraints lead to staffing reductions, lower quality meals from less scratch cooking, and lower wages compared to other sectors. This respondent noted that school food service employees are overworked and underappreciated. Several respondents argued that now is not the time to place more burden on schools still recovering from the pandemic. For example, one school food service respondent opposed the transitional standards, suggesting the standards are too restrictive and make the jobs of school food professionals difficult. They expressed concerns about USDA issuing the standards at a time when schools are still struggling with supply chain and staffing challenges. Miscellaneous Comments Several school food service respondents cited concerns about food waste, encouraging USDA to develop regulations that result in meals that students will enjoy eating. They also emphasized the importance of quality and taste in maintaining student participation in the programs. One respondent suggested that USDA should measure program success based on student participation, not based on compliance with improved meal standards. A few respondents identified their priorities for this proposed rule, including meeting children's dietary needs and preferences. 20 For example, some respondents suggested USDA encourage more vegan, vegetarian, or plant-based meals in the school meal programs. Others recommended that USDA make changes to increase fiber intake, to exclude processed meats, or to better account for specific diets, such as those of student athletes, who one respondent argued require more calories than the current meal patterns allow. 20 Existing regulations at 7 CFR 210.10(m)(1), 215.7a(b), 220.8(m), and 226.20(h) require Program operators to make appropriate substitutions or modifications for milks and foods served under the NSLP, SBP, SMP, and CACFP for children with a disability which restricts their diet. This proposed rule makes no change in these requirements. Several respondents requested technical assistance and training to implement the transitional standards. One advocacy organization said that technical assistance will help school nutrition professionals prepare and serve meals that will encourage meal participation and reduce waste. Some respondents encouraged USDA to provide support to schools facing difficulty implementing new standards, instead of penalizing non-compliance. Stakeholder Engagement: Public Comments on Buy American Request for Information In August 2021, USDA published Request for Information: Buy American in the National School Lunch Program and School Breakfast Program. Through this request for information (RFI), USDA asked for public feedback on the Buy American provision, exceptions to the requirement, and other related USDA policy guidance. USDA included 13 questions for consideration but was open to any comments or feedback that stakeholders wanted to share. USDA received 154 comments in response to the RFI. A wide variety of respondents submitted comments. The majority of comments came from local entities, such as school food authorities, but other interested parties, such as State agencies, national and regional industry members, Tribal stakeholders, and members of the U.S. House of Representatives, also submitted comments. Many respondents voiced support for the Buy American provision. Respondents mentioned the importance of the Buy American provision and its role in encouraging the consumption of domestic food. They emphasized that the Buy American provision supports American agriculture and the domestic economy. However, even while expressing support, many respondents made it clear that challenges exist in implementation of the Buy American provision. The most frequently mentioned themes in these comments included difficulties managing exceptions to the regulation and the time-consuming paperwork required to document exceptions. State agencies and school food authorities cited challenges with managing the documentation and monitoring use of exceptions during reviews. Overall, respondents suggested that the Buy American provision plays a critical role in providing children with nutritious meals that support American agriculture but emphasized that USDA must do more to support implementation. In this proposed rule, USDA aims to respond to this feedback by providing clarification to the requirements and supporting State agency and school efforts to successfully implement the provision. Section 2: Added Sugars Current Requirement Currently, there is no added sugars limit in the school meal programs. Under the current regulations, schools may choose to serve some menu items and meals that are high in added sugars, provided they meet weekly calorie limits (7 CFR 210.10(f)(1) and 220.8(f)(1)). However, USDA has determined that the calorie limits alone are not enough to meet recommendations for limiting children's intake of added sugars. USDA expects that a targeted limit would better support reducing added sugars in school meals, especially school breakfast. The Dietary Guidelines for Americans, 2020-2025 recommends limiting intake of added sugars to less than 10 percent of calories per day. According to the Dietary Guidelines, when a person's intake of added sugars exceeds this recommended limit, a healthy dietary pattern within calorie limits is very difficult to achieve. This is because added sugars contribute calories without contributing essential nutrients to the diet. The Dietary Guidelines indicates that about 70 to 80 percent of school-aged children exceed the recommended limit for added sugars. 21 In 2016, FDA issued a final rule updating the Nutrition Facts label, which requires in part, a declaration of the amount of added sugars in a serving of a product as well as the percent Daily Value (% DV) for added sugars. 22 Manufacturers with $10 million or more in annual sales were required to update their labels by January 1, 2020; manufacturers with less than $10 million in annual food sales were required to update their labels by January 1, 2021. 23 21 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/ . 22 Food Labeling: Revision of the Nutrition and Supplement Facts Labels (81 FR 33741, May 27, 2016). Available at: https://www.federalregister.gov/documents/2016/05/27/2016-11867/food-labeling-revision-of-the-nutrition-and-supplement-facts-labels . See also: 21 CFR 101.9(c)(6)(iii). 23 U.S. Food and Drug Administration. Changes to the Nutrition Facts Label. Available at: https://www.fda.gov/food/food-labeling-nutrition/changes-nutrition-facts-label . According to the most recent research available using USDA school meal data from SY 2014-2015, the average percentage of calories from added sugars is approximately 11 percent at school lunch and 17 percent at school breakfast. 24 Consuming too many added sugars can lead to health problems, such as type 2 diabetes and heart disease. 25 Additionally, schools that serve meals that are high in added sugars have less room within the established calorie limits to offer nutrient-rich foods and beverages that are essential to establishing healthy dietary patterns. 24 Fox MK, Gearan EC, Schwartz C. Added Sugars in School Meals and the Diets of School-Age Children. Nutrients. 2021; 13(2):471. Available at: https://doi.org/10.3390/nu13020471 . 25 Centers for Disease Control and Prevention, Know Your Limit for Added Sugars. Available at: https://www.cdc.gov/healthyweight/healthy_eating/sugar.html . Stakeholder Engagement on Added Sugars Standards: Public Comments and Listening Sessions USDA received extensive stakeholder input to develop the proposed added sugars standards through public comments and through listening sessions held in spring and summer 2022. This section provides an overview of input received through public comments, followed by input shared during the listening sessions. Although the transitional standards rule did not establish added sugars limits, USDA received public comments about added sugars in school meals. Over 4,000 comments addressed sugars or added sugars in school meals. The majority of these were form letters, but over 100 unique comments were submitted about sugars or added sugars. Many respondents recommended that USDA implement an added sugars limit to better align school meal standards with the Dietary Guidelines. Several advocacy organizations stated that the Dietary Guidelines recommend that added sugars contribute less than 10 percent of total calories, and suggested USDA establish a standard that aligns with this recommendation. One advocacy organization representing children's health noted that in the U.S., children consume 17 percent of their calories from added sugars. They stated that excess consumption of added sugars increases the risk for dental decay, cardiovascular disease, hypertension, type 2 diabetes, and a variety of other health conditions. Another advocacy organization focused on public health asserted that most school meals exceed the Dietary Guidelines recommendations for added sugars. They also noted that flavored milk is the leading source of added sugars in school breakfast and lunch. One respondent who identified as a pediatric cardiologist stated that added sugars are a significant source of excess calories and have no nutritional value. They also noted that cases of diabetes among children are significantly increasing and suggested that limiting added sugars in school meals could help reverse this trend. A school food service respondent also expressed concern about added sugars in school meals, arguing that children do not need so much sugar in their diets. A respondent who identified as a nurse educator agreed, asserting that added sugars have no nutritional value and increase the risk of heart disease. An advocacy organization focused on public health noted that excess added sugars consumption is linked to several metabolic abnormalities, a shortfall of essential nutrients, and increased risk of high blood pressure, high cholesterol, diabetes, and inflammation in the body. Several respondents were especially concerned about added sugars in school breakfasts. A few advocacy organizations asserted that at current levels, a typical school breakfast can easily exceed the recommended maximum added sugars for an entire day for a young child. Respondents were concerned about added sugars in a variety of foods commonly offered at breakfast, including flavored milks, sweetened cereals, muffins, and condiments and toppings. Two State agencies suggested limiting grain-based desserts at breakfast to 2 ounce equivalents per week (which is the current limit at lunch) to reduce added sugars. Regarding flavored milk, one advocacy organization argued that numerous studies suggest that sugar can be reduced in flavored milk over time without impacting consumption. One advocacy organization focused on nutrition and science argued that product-specific targets alone would not be sufficient to reduce added sugars in school meals; they asserted that a weekly limit would also be needed for meals to meet the Dietary Guidelines recommendations. A few industry respondents opposed product-specific limits, asserting that individual food products, such as flavored milk and yogurt, can fit into a healthy diet. At the same time, one industry respondent described its success in reducing added sugars in its products, including a 20 percent reduction in breakfast cereals. However, this respondent encouraged USDA to develop a “realistic” standard that includes adequate time for industry to develop products and integrate them into the food system for student acceptance. An advocacy organization affirmed that product reformulation to reduce added sugars is achievable, and if done gradually, does not change consumer preferences. Another advocacy organization stated that consumer demand for low-sugar products has grown in recent years, and that due to mounting scientific evidence of the harmful effects of added sugars, it is urgent to establish an added sugars standard for school meals. Another advocacy organization agreed, stating that consumer preferences have already spurred industry to innovate and reformulate foods. Listening session participants raised many similar themes. Most participants supported the idea of a new added sugars standard for school meals. They emphasized that sugary school breakfasts are seen as an issue by parents, guardians, and teachers and expected that the public would support an added sugars standard. Some recommended following a similar model to the current total sugar limits for breakfast cereals and yogurts in CACFP but noted that more may be needed to meet the recommendations in the Dietary Guidelines. Several participants emphasized that added sugars are more of an issue in school breakfast and suggested that encouraging more protein-rich breakfasts could help to address this problem. Listening session participants recommended limiting added sugars in specific products, such as flavored milk, yogurt, and certain grain products, as well as establishing a weekly limit for added sugars. However, some participants noted that certain products that are high in added sugars, such as grain-based desserts, are also very popular with students. Proposed Standard This rulemaking proposes the following added sugars limits in the school lunch and breakfast programs: • Product-based limits: Beginning in SY 2025-2026, this rulemaking proposes to implement quantitative limits for leading sources of added sugars in school meals, including grain-based desserts, breakfast cereals, yogurts, and flavored milks. • Weekly dietary limit: Beginning in SY 2027-2028, this rulemaking proposes to implement a dietary specification limiting added sugars to less than 10 percent of calories per week in the school lunch and breakfast programs; this weekly limit would be in addition to the product-based limits described above. The proposed product-based limits are as follows: • Grain-based desserts: would be limited to no more than 2 ounce equivalents per week in school breakfast, consistent with the current limit for school lunch. Grain-based desserts include cereal bars, doughnuts, sweet rolls, toaster pastries, coffee cakes, and fruit turnovers. 26 26 U.S. Department of Agriculture, Food Buying Guide for Child Nutrition Programs. Available at: https://foodbuyingguide.fns.usda.gov/Appendix/DownLoadFBG . See: Section 4—Grains, Exhibit A: Grain Requirements for Child Nutrition Programs, for a list of grain-based desserts. • Breakfast cereals: would be limited to no more than 6 grams of added sugars per dry ounce. • Yogurt: would be limited to no more than 12 grams of added sugars per 6 ounces. • Flavored milk: would be limited to no more than 10 grams of added sugars per 8 fluid ounces or, for flavored milk sold as a competitive food for middle and high schools, 15 grams of added sugars per 12 fluid ounces. 27 27 For clarification, USDA is proposing a higher added sugars limit for flavored milk sold as a competitive food in middle and high schools due to the larger serving size. The serving size for milk offered as part of a reimbursable meal is 8 fluid ounces. Milks sold to middle and high school students as a competitive food may be up to 12 fluid ounces. One alternative proposed by USDA in Section 3: Milk would allow flavored milk (fat-free and low-fat) at school lunch and breakfast for high school children only, effective SY 2025-2026. Under this alternative, USDA is proposing that children in grades K-8 would be limited to a variety of unflavored milk. The proposed regulatory text for Alternative A would allow flavored milk for high school children only (grades 9-12). USDA also requests public input on whether to allow flavored milk for children in grades 6-8 as well as high school children (grades 9-12). If in the final rule, based on public input, USDA finalizes the option allowing flavored milk only in high schools (grades 9-12), flavored milk would only be allowed as a competitive food in high schools. As described in more detail below, under Product-based Limits, these proposed product-based limits address several leading sources of added sugars in school breakfast. More information and rationale for the specific added sugars limits proposed in this rulemaking may be found in the Regulatory Impact Analysis in Section 18: Procedural Matters. The gradual, phased-in approach proposed in this rulemaking is expected to make implementation of the added sugars standards achievable for schools. USDA expects that the proposed product-based limits would incentivize the food industry to develop products with less added sugars. This would in turn help schools to develop lunch and breakfast menus that are lower in added sugars, which would better position schools to successfully meet the weekly dietary limit for added sugars upon implementation. For consistency, USDA also proposes to apply the product-based added sugars limits for breakfast cereals and yogurts to the CACFP; the added sugars limits would replace the current total sugar limits for breakfast cereal and yogurt in CACFP. Total sugars include both added sugars and sugars naturally present in many nutritious foods and beverages, such as sugar in milk and fruit, while added sugars include sugars that are added during the processing of foods, foods packaged as sweeteners (such as table sugar), sugars from syrups and honey, and sugars from concentrated fruit or vegetable juices. 28 Since 2015, the Dietary Guidelines have recommended limiting calories from added sugars to less than 10 percent of calories per day. Current CACFP regulations state that breakfast cereals must contain no more than 6 grams of total sugar per dry ounce (7 CFR 226.20(a)(4)(ii)) and that yogurt must contain no more than 23 grams of total sugars per 6 ounces (7 CFR 226.20(a)(5)(iii)(B)). Proposing to change the CACFP total sugar limits for breakfast cereals and yogurt to added sugar limits, consistent with the proposed requirements for school lunch and breakfast, aligns program requirements, reflects current dietary recommendations, and is expected to simplify operations for schools that participate both in school meals and CACFP. Because most sugars included in breakfast cereals are added sugars, USDA does not expect this change to significantly impact the types of breakfast cereals allowed in CACFP. Yogurt contains sugars found naturally in milk and fruit, making it more difficult to directly compare the current total sugars limit in CACFP to the proposed added sugars limit. However, USDA has confirmed that a variety of yogurt products that meet the current CACFP total sugars limit would also meet the proposed added sugars standard. 29 28 See: “Total Sugars” at 21 CFR 101.9(c)(6)(ii) and “Added Sugars” at 21 CFR 101.9(c)(6)(iii). 29 USDA reviewed nutrition label data for yogurt and breakfast cereal products in May 2022 using K-12 school and food service product catalogs directly from food company websites. USDA seeks comments on these proposed changes, found at 7 CFR 210.10(b)(2)(iv), 210.10(c), 210.10(d)(1)(i), 210.10(f)(4), 210.10(h), 220.8(b)(2)(iv), 220.8(c), 220.8(f)(4), 226.20(a)(4)(ii), 226.20(a)(5)(iii)(B), and 226.20(c) of the proposed rule. In developing these proposed changes, USDA considered several important factors, outlined below. Product-Based Limits A study published in January 2021 provided valuable information in the development of this proposal. The study, Added Sugars in School Meals and the Diets of School-Age Children, 30 found that a majority of schools exceeded the Dietary Guidelines recommended limit for added sugars at lunch (69 percent) and breakfast (92 percent). The study also identified the leading sources of added sugars within the programs. Flavored milk was the leading source of added sugars in both programs, contributing half of the added sugars at lunch and about 30 percent of the added sugars at breakfast. 30 Fox MK, Gearan EC, Schwartz C. Added Sugars in School Meals and the Diets of School-Age Children. Nutrients. 2021; 13(2):471. Available at: https://doi.org/10.3390/nu13020471 . In addition to flavored milk, this proposed rule also addresses several other leading sources of added sugars in school breakfasts, where added sugars are more of an issue compared to school lunch. This proposal covers the following food items, which the study found to be among the top ten sources of added sugars in the SBP: • Breakfast cereals • Granola bars and breakfast bars • Toaster pastries • Cinnamon buns • Yogurt Under this proposed rule, breakfast cereals would be limited to 6 grams of added sugars per ounce and yogurts would be limited to 12 grams of added sugars per 6 ounces. The other items listed above would be covered by the weekly limits for grain-based desserts. Granola bars, breakfast bars, toaster pastries, and cinnamon buns (a type of sweet roll) are all grain-based desserts, according to USDA guidance. 31 31 U.S. Department of Agriculture, Food Buying Guide for Child Nutrition Programs. Available at: https://foodbuyingguide.fns.usda.gov/Appendix/DownLoadFBG . See: Section 4—Grains, Exhibit A: Grain Requirements for Child Nutrition Programs, for a list of grain-based desserts. As noted above, USDA has already successfully implemented product-based limits for breakfast cereals, yogurt, and grain-based desserts in its child nutrition programs. For example, NSLP regulations currently limit how often grain-based desserts may be served in reimbursable meals to encourage more nutrient-dense choices; 32 this proposed rule would apply the same limit to the SBP. Further, CACFP currently has total sugar limits for breakfast cereals and yogurt. This proposed rule would build on these successes by also applying product-based limits for breakfast cereals and yogurt to the NSLP and SBP. The proposed limits in this rulemaking are based on added sugars for consistency with the Dietary Guidelines. USDA is also proposing to update the CACFP total sugars limits for breakfast cereals and yogurts to align with the proposed NSLP and SBP added sugars limits for ease of operations. The new added sugars limit for flavored milks served in the school meal programs will follow a similar framework. The products covered by this proposal are commonly served in the programs, are popular with children, and have room to reduce added sugars while maintaining palatability. 32 See: 7 CFR 210.10(c)(2)(iv)(C). The WIC Program has also successfully implemented product-based specifications for certain foods in the WIC food packages. Recently, USDA proposed revisions to the WIC food packages to incorporate recommendations from the National Academies of Science, Engineering, and Medicine (NASEM) in its 2017 scientific report, “Review of WIC Food Packages: Improving Balance and Choice,” and to align the food packages with the Dietary Guidelines for Americans, 2020-2025. The WIC rule, Special Supplemental Nutrition Program for Women, Infants and Children (WIC): Revisions in the WIC Food Packages, 33 proposes to revise limits on total sugars for yogurt and soy beverage, consistent with recommendations in the NASEM report. The Department is seeking comments on the provisions related to sugar in the WIC proposed rule with specific interest in comments on an added versus total sugars limit for foods that currently have total sugar limits: yogurt, soy beverage, and breakfast cereal. Both the WIC proposed rule and this proposed rule share the common goal of limiting sugar intake and promoting healthy dietary patterns among program participants. 33 Special Supplemental Nutrition Program for Women, Infants, and Children (WIC): Revisions in the WIC Food Packages (87 FR 71090, November 21, 2022). Available at: https://www.federalregister.gov/documents/2022/11/21/2022-24705/special-supplemental-nutrition-program-for-women-infants-and-children-wic-revisions-in-the-wic-food . USDA is accepting comments on this proposed rule through February 21, 2023. USDA expects that the product-specific limits in this proposed rule would incentivize the school food industry to develop products with less added sugars. This would in turn help schools to develop lunch and breakfast menus that are lower in added sugars. As noted, some food manufacturers have already begun reducing added sugars in their products; USDA commends and would like to see these efforts continued. USDA also encourages other food companies to follow this lead, with a particular focus on the products included in this proposal and other products that are popular with school-age children and that are commonly served in school meals. With the product-specific standards in place, USDA expects that schools would be better positioned to successfully meet the weekly dietary limit for added sugars, described further below. Weekly Dietary Limit USDA expects the product-based limits to have a meaningful impact on the added sugars offered in school meals but recognizes that a weekly limit is also helpful to achieve consistency with the Dietary Guidelines recommendation. While the proposed product-based limits target leading sources of added sugars in school meals, other foods also contribute to children's overall added sugars intake in the NSLP and SBP. Therefore, this rulemaking also proposes a weekly dietary limit, or dietary specification, for added sugars, to be implemented in SY 2027-2028. The dietary specification would require that less than 10 percent of calories per meal come from added sugars, averaged over one school week by program. 34 USDA expects that the product-based limits will help with initial added sugars reductions in school meals by targeting leading sources of added sugars; the subsequent weekly limit will further support USDA's efforts to help school children meet dietary recommendations. USDA expects that the weekly limit will encourage schools to plan overall menus with less added sugars. For example, schools may opt to remove foods that are high in added sugars from their menus, choose to offer those foods less often, and/or select similar products with less added sugars than the products they are serving today. 34 For comparison, as noted, according to the most recent research available using USDA school meal data from SY 2014-2015, the average percentage of calories from added sugars is approximately 11 percent at school lunch and 17 percent at school breakfast. See: Fox MK, Gearan EC, Schwartz C. Added Sugars in School Meals and the Diets of School-Age Children. Nutrients. 2021; 13(2):471. Available at: https://doi.org/10.3390/nu13020471 . Phasing in this requirement will give schools time to adjust menus and help children adapt to meals with less added sugars. For example, schools might consider serving more protein-rich foods at breakfast in place of grain-based foods, which tend to have more added sugars (see Section 17: Proposals from Prior USDA Rulemaking). The phase-in period will also allow USDA to update its nutrient analysis software to include a dietary specification for added sugars, and to provide additional technical assistance to schools on reducing added sugars in school meals. Public Comments Requested USDA will consider public input on the following questions when developing the final rule and may incorporate changes to the added sugars proposals based on public input. USDA invites public input on these proposals in general, and requests specific input on the following questions: • USDA is proposing product-specific limits on the following foods to improve the nutritional quality of meals served to children: grain-based desserts, breakfast cereals, yogurt, and flavored milk. Do stakeholders have input on the products and specific limits included in this proposal? • Do the proposed implementation timeframes provide appropriate lead time for food manufacturers and schools to successfully implement the new added sugars standards? Why or why not? • What impact will the proposed added sugars standards have on school meal menu planning and the foods schools serve at breakfast and lunch, including the overall nutrition of meals served to children? Section 3: Milk Current Requirement The National School Lunch Act (NSLA, 42 U.S.C. 1758(a)(2)(i) and (ii)) requires schools to offer students a variety of fluid milk at lunch; such milk must be consistent with the most recent Dietary Guidelines. The Child Nutrition Act (CNA, 42 U.S.C. 1773(e)(1)(A)) requires school breakfasts to meet the same terms and conditions set forth for school lunches in the National School Lunch Act (NSLA, 42 U.S.C. 1758), including the requirements for fluid milk. Current regulations at 7 CFR 210.10(d)(1)(i), 220.8(d), and 210.11(m)(1)(ii), (m)(2)(ii) and (m)(3)(ii) allow schools to offer fat-free and low-fat (1 percent fat) milk, flavored and unflavored, in reimbursable school lunches and breakfasts, and for sale as a competitive beverage. The current regulations also require that unflavored milk be offered at each school meal service. Fat-free and low-fat milk, flavored and unflavored, may also be offered to participants ages 6 and older in the SMP and CACFP (7 CFR 215.7a(a) and 226.20(a)(1)(iii)). Lactose-free and reduced-lactose milk meet the meal pattern requirements for fluid milk (7 CFR 210.10(d)(1)(i), 215.7a(a), 220.8(d), and 226.20(a)(1)). The current milk requirement took effect on July 1, 2022. For comparison, the 2012 final rule permitted flavoring in fat-free milk only and required low-fat milk to be unflavored in school lunch and breakfast. This requirement went into effect in SY 2014-2015. However, Congressional and administrative actions beginning in SY 2017-2018 allowed schools to offer low-fat, flavored milk. 35 Prior to the COVID-19 pandemic, in SY 2019-2020, schools were allowed to offer fat-free and low-fat milk, flavored and unflavored, in reimbursable school meals. 35 See page 6991-6992 of Child Nutrition Programs: Transitional Standards for Milk, Whole Grains, and Sodium (87 FR 6984, February 7, 2022). Available at: https://www.federalregister.gov/documents/2022/02/07/2022-02327/child-nutrition-programs-transitional-standards-for-milk-whole-grains-and-sodium#footnote-29-p6991 . Stakeholder Engagement on Milk Standards: Public Comments and Listening Sessions USDA received extensive stakeholder input on the milk standards through public comments and listening sessions held in spring and summer 2022. This section provides an overview of input received through public comments, followed by input shared during the listening sessions. Several public comments supported the transitional standard allowing low-fat, flavored milk, arguing that, in their view, children prefer flavored milk. One respondent asserted that the nutritional difference between low-fat, flavored milk and fat-free, flavored milk is insignificant. A few State agencies that supported allowing low-fat flavored milk argued that more children select and consume milk when flavored milk is offered, helping them receive important nutrients. Some respondents cited concerns about the amount of added sugars in flavored milk, suggesting that USDA address this concern. A few respondents recommended that USDA disallow all flavored milks in the programs; one advocacy organization was concerned that offering flavored milk every day would train a child's palate to prefer sugar-sweetened foods. Another advocacy organization focused on public health suggested that if USDA continues to allow flavored, low-fat milk, it should establish a limit to prevent schools from serving flavored milks that are high in added sugars. An industry respondent noted that milk processors have already significantly reduced the added sugars content of flavored milk. They stated that between SY 2006-2007 and SY 2019-2020 the average added sugars level in flavored milk declined by 57 percent. 36 36 According to this comment, the average added sugars level for flavored milk declined by 57 percent, going from 16.7 grams to 7.1 grams in an 8 fluid ounce serving of flavored milk. A few respondents suggested that USDA allow whole milk to be served in the school meal programs, arguing that whole milk would help reduce food waste and provide children with important vitamins and nutrients. One industry respondent stated that dairy products at all fat levels, including reduced-fat and whole milk, should be permitted as options in school meals. The same respondent pointed out that reduced-fat and whole milk make up most retail sales of milk and asserted that many parents in the U.S. believe that these milk types are the healthiest options for their children. A few respondents argued that it is better for children to drink whole, flavored milk than to not drink milk at all. Several respondents shared input on lactose-free milk and non-dairy fluid milk substitutes. One respondent noted that lactose-free milk provides children who are lactose intolerant the protein and calcium they need without gastro-intestinal distress, but cited cost as a barrier, noting that lactose-free milk costs about twice as much as milk with lactose. The respondent, who stated that a significant portion of their student population is lactose intolerant, suggested additional funding would help schools to offer lactose-free milk. An advocacy organization focused on animal rights urged USDA to allow plant-based milks and other non-dairy beverages for all children. They argued that this change would support children who are lactose intolerant and reduce the environmental harms caused by concentrated animal feeding operations. Another respondent suggested almond or other nut milks as an alternative to cow's milk. An advocacy organization recommended that USDA better communicate its policy allowing fluid milk substitutes for children with medical or special dietary needs. Listening session participants raised many similar themes. Several participants suggested that overall milk consumption increases when low-fat, flavored milk is an option and recommended USDA continue to allow low-fat, flavored milk. Some listening session participants noted that fat-free, flavored milk is not widely available in the retail market, and that, in their view, children are not familiar with and do not like the way it tastes. Listening session participants representing the food industry emphasized the importance of considering palatability and acceptability when establishing milk standards and suggested that added sugars and sodium standards could impact milk options available to schools. Participants also raised cost constraints as a limitation to offering lactose-free milk and milk alternatives for children who cannot consume cow's milk. Proposed Standard This rulemaking proposes two alternatives for the milk standard: • Alternative A: Proposes to allow flavored milk (fat-free and low-fat) at school lunch and breakfast for high school children only, effective SY 2025-2026. Under this alternative, USDA is proposing that children in grades K-8 would be limited to a variety of unflavored milk. The proposed regulatory text for Alternative A would allow flavored milk for high school children only (grades 9-12). USDA also requests public input on whether to allow flavored milk for children in grades 6-8 as well as high school children (grades 9-12). Children in grades K-5 would again be limited to a variety of unflavored milk. Under both Alternative A scenarios, flavored milk would be subject to the new proposed added sugars limit. • Alternative B: Proposes to maintain the current standard allowing all schools to offer fat-free and low-fat milk, flavored and unflavored, with the new proposed added sugars limit for flavored milk. Several additional proposals would apply under either alternative. As discussed in Section 2: Added Sugars, this rulemaking will limit the amount of added sugars in flavored milk to no more than 10 grams per 8 fluid ounces, effective SY 2025-2026. This proposed added sugars standard would apply to milk served in reimbursable school lunches and breakfasts, and for sale as a competitive beverage. Consistent with current requirements, this rulemaking would require that unflavored milk be offered at each school meal service. This rulemaking also proposes to continue to allow fat-free and low-fat milk, flavored and unflavored, to be offered to participants ages 6 and older in the SMP and CACFP. However, as noted below, USDA requests public input on allowing unflavored milks only for children in grades K-8 or K-5, as applicable, in SMP and CACFP, if Alternative A is finalized with restrictions on flavored milk for grades K-8 or K-5 in NSLP and SBP. While USDA appreciates comments on whole milk, allowing whole milk in the school meal programs would make it harder for children to meet nutrient needs while staying within calorie and saturated fat limits. Additionally, the Dietary Guidelines, 2020-2025 recommends unsweetened fat-free or low-fat milk for school-aged children. Therefore, USDA does not propose allowing whole milk in the school meal programs. USDA also proposes to reorganize the regulatory text related to fluid milk substitutes for non-disability reasons. This rulemaking would move the regulatory text explaining the fluid milk substitute requirements from paragraph (m) of 7 CFR 210.10—which currently discusses exceptions and variations allowed in reimbursable meals—to paragraph (d) of 7 CFR 210.10—which discusses the fluid milk requirements. These changes are expected to help clarify the requirements for fluid milk substitutions. Fluid milk substitutions are addressed further below. Under Alternative A, USDA is proposing to allow flavored milk for high school children only (grades 9-12). This approach would reduce exposure to added sugars and would promote the more nutrient-dense choice of unflavored milk for young children when their tastes are being formed. The proposed regulatory text for this alternative would allow flavored milk only for high schools (grades 9-12); however, regarding this alternative, USDA requests public input on whether to allow flavored milk only in high schools (grades 9-12) or in middle schools and high schools (grades 6-12). USDA aims to balance the importance of reducing young children's exposure to added sugars with the importance of providing older children the autonomy to choose among a greater variety of milk beverages that they enjoy; respondents are encouraged to provide input on how to balance these important priorities. Respondents are also invited to provide input on any operational considerations that USDA should keep in mind regarding school configurations; for example, how such a standard should apply to schools that serve children in grades K-12. While not proposed in this rulemaking, should Alternative A be finalized with restrictions on flavored milk for grades K-8 or K-5 in NSLP and SBP, USDA also requests public input on whether to pursue a similar change in SMP and CACFP. As noted in Section 2: Added Sugars, flavored milk is the leading source of added sugars in the school lunch and breakfast programs, contributing half of the added sugars at lunch and about 30 percent of the added sugars at breakfast. While USDA expects the proposed product-based added sugars limit for flavored milk would support reducing added sugars for schoolchildren of all ages, this additional measure would further reduce elementary and middle schoolchildren's exposure to added sugars. According to the Dietary Guidelines “consuming beverages with no added sugars is particularly important for young children.” The Dietary Guidelines also recommend young children make healthier, more nutrient-dense food choices, including choosing unsweetened beverages instead of beverages with added sugars. As noted below, USDA invites public input on both proposed alternatives. Respondents that support Alternative A are encouraged to provide specific input on whether USDA should limit flavored milk to high schools (grades 9-12) or to middle schools and high schools (grades 6-12). After considering public input, USDA will determine which alternative to finalize. USDA seeks comments on these proposals, which are both found at 7 CFR 210.10(d), 210.11(m), and 220.8(d) of the proposed rule. Below, USDA addresses important topics raised by comments. Added Sugars in Milk The Dietary Guidelines, 2020-2025 recommend consumption of beverages that contain no added sugars, such as water and unsweetened fat-free or low-fat milk, as the primary choice for children and adolescents. They also note that early food preferences influence later food choices and assert that decreasing the consumption of sugar-sweetened beverages will help reduce added sugars intake and will allow children to achieve a healthy dietary pattern. According to the Dietary Guidelines, sugar-sweetened beverages—a top contributor of added sugars—make up 15 to 25 percent of total added sugars intake in childhood, and 32 percent in adolescence. 37 37 See page 87. U.S. Department of Agriculture and U.S. Department of Health and Human Services. 2020-2025 Dietary Guidelines for Americans. 9th Edition. December 2020. Available at: https://www.dietaryguidelines.gov/ . Flavored milks are the top contributor of added sugars in the school meal programs. USDA expects that the proposed added sugars limit for flavored milk, discussed in Section 2: Added Sugars, will help to address this issue in the near-term and may support children's consumption of nutrient-dense foods later in life. 38 Additionally, USDA understands that dairy, including fluid milk and fluid milk substitutes, provide protein and a variety of nutrients that are underconsumed during childhood and adolescence. According to Dietary Guidelines, average intake of dairy foods, which provide potassium, calcium, and vitamin D, is typically below recommended intake levels for adolescents. 39 USDA recognizes that for some children, flavored milk is a palatable option that improves consumption of these important nutrients, which support the accrual of bone mass. The National School Lunch Act currently requires a variety of fluid milk to be offered with every school lunch and breakfast. USDA appreciates the benefit of allowing flavored milk—a fluid milk option that many children enjoy and may be less likely to waste. For example, USDA research from SY 2014-2015 found that about 18 percent of low-fat, flavored milk offered with school lunch was wasted, compared to 35 percent of low-fat, unflavored milk. 40 However, schools are not required to offer flavored milk, and may consider offering unflavored milk options only at certain meals or on certain days to promote more nutrient-dense choices. 38 See Figure 2-1: “Science shows that early food preferences influence later food choices. Make the first choice the healthiest choices . . .” 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/ . 39 See page 76 and page 88. 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/ . 40 See Table 5.1: Mean Percentage of Observed Trays including Specific Foods and Mean Percentage of Observed Foods Wasted in NSLP Lunches. U.S. Department of Agriculture, Food and Nutrition Service, Office of Policy Support, School Nutrition and Meal Cost Study, Final Report Volume 4: Student Participation, Satisfaction, Plate Waste, and Dietary Intakes, by Mary Kay Fox, Elizabeth Gearan, Charlotte Cabili, Dallas Dotter, Katherine Niland, Liana Washburn, Nora Paxton, Lauren Olsho, Lindsay LeClair, and Vinh Tran. Project Officer: John Endahl. Alexandria, VA: April 2019. Available at: https://www.fns.usda.gov/school-nutrition-and-meal-cost-study . (OMB Control Number 0584-0596, expiration date 07/31/2017.) Fluid Milk Substitutes As noted, many commenters raised concerns on behalf of children who cannot consume, or have difficulty consuming, cow's milk. USDA appreciates the public's concern about children's access to fluid milk substitutes, particularly given the disproportionate rates of lactose intolerance among communities of color. For example, according to the National Institutes of Health, in the United States, African Americans, American Indians, Asian Americans, and Hispanics/Latinos are more likely to have lactose malabsorption, and “lactose intolerance is least common among people who are from, or whose families are from, Europe.” 41 Global estimates find that about 5 to 15 percent of Europeans are lactose intolerant, compared to 65 to 90 percent of adults in Africa and East Asia. 42 41 National Institute of Diabetes and Digestive and Kidney Diseases. Definition & Facts for Lactose Intolerance. Available at: https://www.niddk.nih.gov/health-information/digestive-diseases/lactose-intolerance/definition-facts . 42 InformedHealth.org [internet]. Cologne, Germany: Institute for Quality and Efficiency in Health Care (IQWiG); 2006-. Lactose intolerance: Overview. 2010 Sep 15 [Updated 2018 Nov 29]. Available at: https://www.ncbi.nlm.nih.gov/books/NBK310267/ . In addition to fluid milk, yogurt, and cheese, the Dietary Guidelines include “fortified soy beverages” as part of the dairy group because they are similar to milk and yogurt based on nutrient composition and in their use in meals. However, as noted, the National School Lunch Act requires fluid milk (cow's milk) to be offered with every school breakfast and lunch. The statute is also very specific about allowable fluid milk substitutes for non-disability reasons. To provide a substitute for cow's milk, the statute requires: • That the non-dairy beverage is nutritionally equivalent to fluid milk and meets nutritional standards established by the Secretary, which must include fortification of calcium, protein, vitamin A, and vitamin D to levels found in cow's milk (42 U.S.C. 1758(a)(2)(B)(i)). • That the substitution is requested in writing by a medical authority or the student's parent or legal guardian (42 U.S.C. 1758(a)(2)(B)(ii)). • That the school notify the State agency if it is providing fluid milk substitutes for non-disability reasons (42 U.S.C. 1758(a)(2)(B)(ii)). • That the school cover any expenses related to providing fluid milk substitutes in excess of program reimbursements (42 U.S.C. 1758(a)(2)(B)(iii)). USDA recognizes that the specific nutrition and paperwork requirements and cost burden associated with fluid milk substitutes present barriers for schools and families. Additionally, USDA recognizes that under the statute, schools are allowed—but not required—to provide fluid milk substitutes for non-disability reasons; this means that, due to budget constraints, some schools may opt not to provide a fluid milk substitute requested for non-disability reasons on behalf of a child. As noted below, USDA requests public input on the current fluid milk substitute process. While USDA does not have the authority to change the statutory requirements outlined above, better understanding challenges associated with the current process may help USDA address the concerns raised by commenters. As a point of clarification, the statute and regulation require schools to provide meal modifications for children with a disability that restricts their diet. Lactose intolerance may be considered a disability; for example, a child whose digestion is impaired due to lactose intolerance may be considered a person with a disability that requires a menu substitution for fluid milk. In 2020, USDA proposed changes to align regulatory requirements for disability-related meal modifications with the Americans with Disabilities Act of 1990 (ADA), as amended. The ADA Amendments Act of 2008 (Pub. L. 110-235) clarified the meaning and interpretation of the ADA definition of “disability” to ensure that the definition of disability would be broadly construed and applied without extensive analysis. These proposed changes to meal modifications for disability reasons will be further addressed in the forthcoming final rule, as discussed in Section 17: Proposals from Prior USDA Rulemaking. For up-to-date information about meal modifications for disability reasons, see USDA policy guidance: Modifications to Accommodate Disabilities in the School Meal Programs. 43 43 U.S. Department of Agriculture, Modifications to Accommodate Disabilities in the School Meal Programs, September 27, 2016. Available at: https://www.fns.usda.gov/cn/modifications-accommodate-disabilities-school-meal-programs . Public Comments Requested For the final rule, USDA is considering two different milk proposals and invites comments on both. These two proposals are included in the regulatory text as Alternative A and Alternative B: • Alternative A: Proposes to allow flavored milk (fat-free and low-fat) at school lunch and breakfast for high school children only, effective SY 2025-2026. Under this alternative, USDA is proposing that children in grades K-8 would be limited to a variety of unflavored milk. The proposed regulatory text for Alternative A would allow flavored milk for high school children only (grades 9-12). USDA also requests public input on whether to allow flavored milk for children in grades 6-8 as well as high school children (grades 9-12). Children in grades K-5 would again be limited to a variety of unflavored milk. Under both Alternative A scenarios, flavored milk would be subject to the new proposed added sugars limit. • Alternative B: Proposes to maintain the current standard allowing all schools to offer fat-free and low-fat milk, flavored and unflavored, with the new proposed added sugars limit for flavored milk. USDA will consider the following questions when developing the final rule and may incorporate changes to the milk proposals based on public input. USDA invites public input on these proposals in general, and requests specific input on the following questions: • The Dietary Guidelines state that “consuming beverages with no added sugars is particularly important for young children.” As discussed above, one of the two proposals USDA is considering would limit milk choices in elementary and middle schools (grades K-8) to unflavored milk varieties only at school lunch and breakfast. To reduce young children's exposure to added sugars and promote the more nutrient-dense choice of unflavored milk, should USDA finalize this proposal? Why or why not? ○ Respondents that support Alternative A are encouraged to provide specific input on whether USDA should limit flavored milk to high schools only (grades 9-12) or to middle schools and high schools only (grades 6-12). • If Alternative A is finalized with restrictions on flavored milk for grades K-8 or K-5 in NSLP and SBP, should USDA also pursue a similar change in SMP and CACFP? Are there any special considerations USDA should keep in mind for SMP and CACFP operators, given the differences in these programs compared to school meal program operators? • What feedback do stakeholders have about the current fluid milk substitute process? USDA is especially interested in feedback from parents and guardians and program operators with firsthand experience requesting and processing a fluid milk substitute request. Section 4: Whole Grains Current Requirement Current regulations at 7 CFR 210.10(c)(2)(iv) and 220.8(c)(2)(iv) require at least 80 percent of the weekly grains offered in the school lunch and breakfast programs to be whole grain-rich. The remaining grain items offered must be enriched. To meet USDA's whole grain-rich criteria, a product must contain at least 50 percent whole grains; any grain ingredients that are not whole grain must be enriched, bran, or germ. In other words, whole grain-rich products are at least half whole grain. Products that exceed the 50 percent whole grain threshold, such as products that are 100 percent whole grain, also meet the whole grain-rich criteria. The current whole grain-rich requirement took effect on July 1, 2022. For comparison, the 2012 final rule required all grains offered in the school lunch and breakfast programs to meet the whole grain-rich criteria. However, successive legislative and administrative action beginning in 2012 prevented full implementation of the whole grain-rich requirement. 44 Prior to the COVID-19 pandemic, in SY 2019-2020, at least 50 percent of the weekly grains offered in the school lunch and breakfast programs were required to be whole grain-rich. 44 See page 6994 of Child Nutrition Programs: Transitional Standards for Milk, Whole Grains, and Sodium (87 FR 6984, February 7, 2022). Available at: https://www.federalregister.gov/documents/2022/02/07/2022-02327/child-nutrition-programs-transitional-standards-for-milk-whole-grains-and-sodium#footnote-29-p6991 . Stakeholder Engagement on Grains Standards: Public Comments and Listening Sessions USDA received extensive stakeholder input on the grains standards through public comments and listening sessions held in spring and summer 2022. This section provides an overview of input received through public comments, followed by input shared during the listening sessions. Many public comments cited the importance of increasing whole grains in children's diets. For example, respondents stated that whole grains provide important nutrients and fiber and improve diet quality. A few advocacy organizations noted that diets high in whole grains and fiber are associated with decreased risk of cardiovascular disease, stroke, and diabetes. Advocacy organizations also expressed concern that children ages 4 to 18 do not currently meet the recommended intake for whole grains and exceed the recommended limit for refined grains. Several respondents offered specific suggestions for USDA to consider when developing this proposed rule. A school food service respondent suggested that the school meal standards follow MyPlate guidelines: make half of your grains whole grain. 45 This respondent noted that they use MyPlate to teach students and families about healthy eating. An advocacy organization focused on public health noted that schools have made significant progress in offering whole grain-rich foods and argued that it is possible to offer all grains as whole grain-rich. One respondent stated that whole grain-rich foods are accepted by students at their school, while another asserted that school districts have been able to create healthy, delicious meals with entirely whole grain-rich foods. An advocacy organization representing food and nutrition professionals supported the 80 percent whole grain-rich requirement in the transitional standards rule as a “steppingstone” towards stronger requirements. Other respondents suggested maintaining the 80 percent whole grain-rich standard in the long-term, arguing it is strict enough. For example, one respondent noted that the 80 percent standard allows for some enriched grains, which they argued improves palatability. This respondent asserted that children would appreciate the inclusion of some enriched grains at breakfast and lunch. Similarly, one industry respondent suggested allowing some flexibility for schools to offer fortified and enriched grains, stating that this would help schools provide more menu options that kids enjoy. Several respondents recommended that USDA ease back on the requirement and require half of the grains offered to meet the whole grain-rich criteria. 45 U.S. Department of Agriculture. Grains. Available at: https://www.myplate.gov/eat-healthy/grains . Many respondents noted the importance of working with the food industry to ensure that whole grain-rich items are readily available and affordable for schools. For example, one school district respondent emphasized that school meals “do not exist in a vacuum” and are a part of the broader commercialized food system. Some respondents expressed concerns with the availability or acceptability of specific products, including whole grain-rich tortillas, pastas, and biscuits; for example, one school nutrition director suggested that whole grain-rich tortillas and pastas “crumble” and are not accepted by students. Conversely, some industry respondents shared their success developing a wide array of whole grain-rich products. One industry respondent successfully developed whole grain-rich breakfast entrées, ready-to-eat breakfast cereals, and biscuits; this respondent supported stronger whole grain-rich standards. Another industry respondent stated its intent to continue innovating and expanding whole grain-rich options, even though its core K-12 grain portfolio already meets USDA's whole grain-rich criteria. A different industry respondent stated that they have 25 entrée items containing whole grain-rich pasta or breading that are accepted by students; however, this respondent indicated that development of these products required heavy collaboration and several changes in formulations over time. Listening session participants raised many similar themes. Many participants generally supported increasing whole grains in the programs, noting that schools have been successful in meeting the whole grain-rich standards. Participants also stated that many products that children enjoy are available in the market. However, some participants noted that certain menu items, such as pasta and tortillas, are still not available or acceptable in whole grain-rich form, while others cited concerns about supply chain issues impacting the availability of certain products. Some listening session participants supported a 100 percent whole grain-rich requirement for consistency with the Dietary Guidelines, while others argued a 100 percent whole grain-rich standard is not realistic. Listening session participants also recommended a 50 percent whole grain-rich standard or an 80 percent whole grain-rich standard. Proposed Standard For the whole grains requirement in the school lunch and breakfast programs, USDA is considering two different options and invites comments on both. This rulemaking: • Proposes to maintain the current whole grains requirement that at least 80 percent of the weekly grains offered are whole grain-rich, based on ounce equivalents of grains offered. • Requests public input on an alternative whole grains option, which would require that all grains offered must meet the whole grain-rich requirement, except that one day each school week, schools may offer enriched grains. The alternative approach is described in greater detail below. USDA will consider public input when developing the final rule and may incorporate changes to the whole grains proposal based on public input. Either approach would promote whole grain-rich foods while allowing schools to occasionally serve non-whole grain-rich products that stakeholders and public comments have suggested are popular with students. USDA expects that both standards would be achievable for schools and would result in meals that students enjoy. In addition, USDA also proposes to add a regulatory definition of “whole grain-rich” for clarity. The definition would read as follows: Whole grain-rich is the term designated by FNS to indicate that the grain content of a product is between 50 and 100 percent whole grain with any remaining grains being enriched. This proposed definition would not change the meaning of whole grain-rich, which has previously been communicated in USDA guidance; USDA is instead proposing to define the term in regulation for clarity. This definition would be included in NSLP, SBP, and CACFP regulations. As noted above, as an alternative to the proposal to maintain the current whole grains requirement that at least 80 percent of the weekly grains offered are whole grain-rich, USDA is considering a days-per-week model. This alternative would require that all grains offered in the school lunch and breakfast programs must meet the whole grain-rich requirement, except that one day each school week, schools may offer enriched grains. For most school weeks, this would result in four days of whole grain-rich grains, with enriched grains allowed on one day. On the day enriched grains are permitted, schools may choose to offer enriched grains, whole grain-rich grains, 100 percent whole grains, or a combination of these. This alternative proposal would prevent enriched grains from being offered in competition with whole grain-rich grains on a daily basis, since it would limit enriched grains to one day per week in each program. As such, under this alternative, all students that participate in NSLP or SBP would be offered only whole grain-rich grains on most school days. Based on public input, USDA may choose to finalize this alternative in the final rule. As noted below, USDA seeks public input on both approaches. Finally, USDA proposes a corresponding change to the definition of “entrée” in the competitive food, or “Smart Snack” regulations. 46 The competitive food regulations allow entrée items to be sold à la carte on the day they are served and the day after, even if the entrée does not comply with the competitive food standards. This exemption helps school food professionals to better manage their programs and prevent food waste. It also helps to reduce potential confusion about whether an entrée served to some students as part of a meal can be purchased à la carte by other students. The current definition of “entrée” in the competitive food regulations specifies that grain entrées must be whole grain-rich; however, under the proposed standard, enriched grains may be served as part of a reimbursable meal entrée. USDA proposes to remove the whole grain-rich criteria from the definition of “entrée,” which would allow any reimbursable meal entrée that includes enriched grains to also be sold as a Smart Snack on the day it is served in the school lunch or breakfast program, and the day after. This proposal would not impact the general standards for competitive foods, which would continue to require all other grain items sold as Smart Snacks to meet USDA's whole grain-rich criteria. 46 For more information on Smart Snacks in Schools, see: Tools for Schools—Focusing on Smart Snacks. Available at: https://www.fns.usda.gov/cn/tools-schools-focusing-smart-snacks . USDA seeks comments on this proposal, found at 7 CFR 210.2, 210.10(c)(2)(iv), 210.11(a)(3), 220.2, 220.8(c)(2)(iv), and 226.2 of the proposed rule. In developing this proposal, USDA considered several important factors, outlined below. Dietary Recommendations Whole grains are an important source of dietary fiber, which is considered a dietary component of public health concern for the general U.S. population. 47 The Dietary Guidelines, 2020-2025 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. Although the Dietary Guidelines do not use the term “whole grain-rich,” it states that one way to meet the recommendation is to choose products with at least 50 percent of the total weight made up of whole grain ingredients, which is consistent with USDA's whole grain-rich criteria. 47 U.S. Department of Agriculture and U.S. Department of Health and Human Services. Current Dietary Guidelines—Food Sources of Select Nutrients. Available at: https://www.dietaryguidelines.gov/resources/2020-2025-dietary-guidelines-online-materials/food-sources-select-nutrients . Consuming whole grains may provide many health benefits, such as reducing the risk of heart disease and supporting healthy digestion. 48 Studies have found a connection between whole grains consumption and better health. For example, according to the Harvard T.H. Chan School of Public Health, a meta-analysis of seven major studies found that cardiovascular disease was 21 percent less likely in people who ate two and a half or more servings of whole grain foods each day compared with people who ate less than two servings each week. 49 Another study found that women who averaged two to three servings of whole grains each day were 30 percent less likely to have developed type 2 diabetes compared to those who rarely ate whole grains. 50 48 U.S. Department of Agriculture. Grains. Available at: https://www.myplate.gov/eat-healthy/grains . 49 Harvard T.H. Chan School of Public Health, The Nutrition Source—Whole Grains. Available at: https://www.hsph.harvard.edu/nutritionsource/what-should-you-eat/whole-grains/ . See footnote 7: Mellen PB, Walsh TF, Herrington DM. Whole grain intake and cardiovascular disease: a meta-analysis. Nutr Metab Cardiovasc Dis. 2008;18:283-90. 50 Harvard T.H. Chan School of Public Health, The Nutrition Source—Whole Grains. Available at: https://www.hsph.harvard.edu/nutritionsource/what-should-you-eat/whole-grains/ . See footnote 9: de Munter JS, Hu FB, Spiegelman D, Franz M, van Dam RM. Whole grain, bran, and germ intake and risk of type 2 diabetes: a prospective cohort study and systematic review. PLoS Med. 2007;4:e261. Research also demonstrates that USDA standards make a difference in children's consumption of whole grain foods. For example, a USDA study found that the ratio of whole grain to total grain consumption in children's total diets nearly doubled from SY 2003-2004 to SY 2013-2014. This study suggested an association between school meal standards and higher whole grain consumption by school children, and noted that repeated exposure to a food, such as through school meals, increases an individual's preference for it. In the case of whole grains, the study suggested repeated exposure in school may encourage children's whole grain consumption outside of school and in later years. 51 Additionally, USDA research found that in SY 2014-2015, the Healthy Eating Index (HEI) component score for whole grains was 95 percent of the maximum score at breakfast and at lunch. This represents a significant increase compared to SY 2009-2010, when the average score at breakfast was 38 percent and the average score at lunch was 25 percent of the maximum score. 52 51 U.S. Department of Agriculture. Schoolchildren Consumed More Whole Grains Following Change in School Meal Standards. February 3, 2020. Available at: https://www.ers.usda.gov/amber-waves/2020/february/schoolchildren-consumed-more-whole-grains-following-change-in-school-meal-standards/ . Drawn from: “Dietary Guidance and New School Meal Standards: Schoolchildren's Whole Grain Consumption Over 1994-2014,” by Biing-Hwan Lin, Joanne F. Guthrie, and Travis A. Smith, American Journal of Preventive Medicine, (doi:10.1016/j.amepre.2019.01.010), January 2019. 52 In SY 2014-2015, all grains offered in the NSLP and SBP were required to be whole grain-rich; however school food authorities that demonstrated a hardship in meeting this requirement could seek an exemption that allowed for meeting a relaxed requirement that at least 50 percent of all grains must be whole grain-rich. See Figure ES.14. And Figure ES.17. School Nutrition and Meal Cost Study, Final Report Volume 2: Nutritional Characteristics of School Meals by Elizabeth Gearan, Mary Kay Fox, Katherine Niland, Dallas Dotter, Liana Washburn, Patricia Connor, Lauren Olsho, and Tara Wommak. Project Officer: John Endahl. Alexandria, VA: April 2019. Available at: https://www.fns.usda.gov/school-nutrition-and-meal-cost-study . (OMB Control Number 0584-0596, expiration date 07/31/2017.) Although the 80 percent whole grain-rich standard does not fully meet the Dietary Guidelines recommendation that at least half of total grains should be whole grains, it does encourage increased consumption of whole grain-rich foods while allowing menu planners some flexibility to provide regional and cultural favorites that are not whole grain-rich. This limited flexibility responds to public comments and points made during USDA's listening sessions with child nutrition program stakeholders, who emphasized the importance of ensuring that school meal standards meet cultural preferences. For example, white rice and non-whole grain-rich tortillas were cited as foods that schools would like to continue to occasionally serve as part of school lunch. The 80 percent threshold is a minimum standard, not a maximum; schools that are able to offer all grains as whole grain-rich are encouraged to exceed the proposed standard. USDA encourages schools to incorporate more whole grain-rich products in the breakfast and lunch menus in a way that children will enjoy. Many corn-based products commonly served in schools (including certain breakfast cereals, tortillas, and grits) are whole grain-rich and count towards the whole grain-rich requirements in the school meal programs. For example, ingredients labeled hominy, corn masa, and masa harina are considered whole grain-rich. For more information about crediting these foods and other products made from cornmeal, corn flour, etc. in the school meal programs, please see the policy memorandum Crediting Coconut, Hominy, Corn Masa and Masa Harina in the Child Nutrition Programs. 53 Additionally, all fortified, ready-to-eat breakfast cereal, including corn-based cereal, can contribute to school meal requirements if the ingredient statement of a corn-based, ready-to-eat breakfast-s the total grains component, in the amount of up to 20 percent of the weekly grains requirement in this proposed rule. All ready-to-eat breakfast cereals with at least 50 percent whole grain ingredients (whole grain as the primary grain ingredient) contribute to the whole grain-rich requirements. 53 U.S. Department of Agriculture. Crediting Coconut, Hominy, Corn Masa and Masa Harina in the Child Nutrition Programs. August 22, 2019. Available at: https://www.fns.usda.gov/cn/crediting-coconut-hominy-corn-masa-and-masa-harina-child-nutrition-programs . Product Availability USDA recognizes that many stakeholders are concerned about product availability, particularly in relation to recent supply chain challenges. The past several years have been incredibly difficult for school food service professionals, and USDA acknowledges that some of these challenges will continue for some time. However, USDA also appreciates the importance of maintaining strong nutrition standards for the long term and encouraging schools to provide children with the most nutritious meals possible. As noted, manufacturers are working to increase whole grain-rich options. In public comments submitted on the transitional standards rule, food industry respondents emphasized progress made toward expanding whole grain-rich offerings. For example, one respondent described recent efforts to enhance its K-12 portfolio to provide whole grain-rich items that are good sources of protein and low in sodium. Another described a significant initiative in the early 2000s to increase the whole grain content in its products based on dietary recommendations, as well as further innovations following USDA's 2012 school nutrition rule. Industry respondents also described success in developing whole grain-rich products that children enjoy. USDA encourages other food manufacturers to expand their whole grain-rich offerings and invites public comment regarding any specific challenges in this area. Additionally, USDA reminds stakeholders that a variety of whole-grain rich products are available through the USDA Foods program. In SY 2022-2023, the following whole grain-rich products were available through USDA Foods: cereal, flour, oats, pancakes, pasta (including macaroni, penne, rotini, and spaghetti), rice, and tortillas. USDA Foods also provided fish with whole grain-rich breading. 54 54 U.S. Department of Agriculture. USDA Foods Available List for SY 2023. Available at: https://www.fns.usda.gov/usda-fis/usda-foods-available . Public Comments Requested For the final rule, USDA is considering two different options and invites comments on both: • Maintaining the current requirement that at least 80 percent of the weekly grains offered are whole grain-rich, based on ounce equivalents of grains offered; or • Requiring that all grains offered must meet the whole grain-rich requirement, except that one day each school week, schools may offer enriched grains. USDA will consider the following questions when developing the final rule and may incorporate changes to the whole grains proposal based on public input. USDA invites public input on both these options in general, and requests specific input on the following questions: • Which option would be simplest for menu planners to implement, and why? • Which option would be simplest to monitor, and why? Section 5: Sodium Current Requirement Current regulations at 7 CFR 210.10(f)(3) and 220.8(f) require schools to meet Sodium Target 1 for school lunch and breakfast, effective SY 2022-2023. For school lunch only, schools are required to meet Sodium Target 1A beginning in SY 2023-2024. These standards are shown in the tables below: National School Lunch Program Transitional Sodium Limits Age/grade group Target 1: effective July 1, 2022 Interim Target 1A: effective July 1, 2023 Grades K-5 ≤1,230 mg ≤1,110 mg. Grades 6-8 ≤1,360 mg ≤1,225 mg. Grades 9-12 ≤1,420 mg ≤1,280 mg. School Breakfast Program Transitional Sodium Limits Age/grade group Target 1: effective July 1, 2022 Grades K-5 ≤540 mg. Grades 6-8 ≤600 mg. Grades 9-12 ≤640 mg. The current sodium limits apply to the average lunch and breakfast offered during the school week; they do not apply per day, per meal, or per menu item. This means that specific products are not held to specific sodium limits, but rather, meals must fit in to the overall weekly limit. Menu planners may occasionally offer higher sodium meals, menu items, or products if they are balanced out with lower sodium meals, menu items, or products throughout the school week. For comparison, the 2012 final rule 55 included three transitional targets (Target 1, Target 2, and the Final Target) to reduce sodium intake over a 10-year period. However, successive legislative and administrative action prevented implementation of sodium targets beyond Target 1 from occurring. 56 Prior to the COVID-19 pandemic, in SY 2019-2020, schools were required to meet Sodium Target 1. According to a USDA study, in SY 2014-2015, on average, 72 percent of weekly lunch menus met Sodium Target 1 and another 13 percent were within 10 percent of the target. For breakfast, 67 percent of weekly menus met Sodium Target 1, and another 10 percent of weekly menus were within 10 percent of the target. 57 55 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. 56 See page 6997 of Child Nutrition Programs: Transitional Standards for Milk, Whole Grains, and Sodium (87 FR 6984, February 7, 2022). Available at: https://www.federalregister.gov/documents/2022/02/07/2022-02327/child-nutrition-programs-transitional-standards-for-milk-whole-grains-and-sodium#footnote-29-p6991 . 57 See Table C.14 and Table E.14. School Nutrition and Meal Cost Study, Final Report Volume 2: Nutritional Characteristics of School Meals by Elizabeth Gearan, Mary Kay Fox, Katherine Niland, Dallas Dotter, Liana Washburn, Patricia Connor, Lauren Olsho, and Tara Wommak. Project Officer: John Endahl. Alexandria, VA: April 2019. Available at: https://www.fns.usda.gov/school-nutrition-and-meal-cost-study . (OMB Control Number 0584-0596, expiration date 07/31/2017.) USDA is applying lessons learned from implementation of the 2012 sodium standards to this rulemaking. The transitional standards rule removed Sodium Target 2 and the Final Target from the regulations and noted that this forthcoming proposed rule would address longer-term sodium standards. USDA has determined that a more gradual approach to sodium reduction, when compared to the original schedule outlined in the 2012 rule, is more likely to be achieved and thus would better meet the needs of schools and students. Studies have noted that implementation of sodium reductions take time and effort. For example, one study noted several considerations, such as environmental context, potential barriers to implementation, the importance of technical assistance, and the need for buy-in from partners to successfully reduce sodium. 58 Another study focused on community-wide sodium reduction efforts recommended designing programs “to reduce sodium gradually to take into account consumer preferences and taste transitions.” 59 As detailed in the following Stakeholder Engagement section, USDA acknowledges that some stakeholders would prefer a more rapid approach to sodium reduction in schools, including a return to the 2012 sodium standards. USDA appreciates the strong commitment these individuals and organizations have to children's dietary health. However, as explained under Proposed Standard, USDA expects this proposed approach to be a more viable option, based in part on its alignment with FDA's voluntary sodium reduction targets. USDA expects further sodium reductions in school meals to be achievable as even more new and reformulated food products that align with FDA's voluntary targets become available over time. USDA expects that FDA's voluntary sodium reduction goals will support children's acce [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2023-02102. Public record. Not legal advice.