Removal of the ``Cheese Alternate Products'' Specifications From the National School Lunch Program

DEPARTMENT OF AGRICULTURE

Food and Consumer Service

7 CFR Parts 210 and 225

RIN 0584-AC04

Removal of the ``Cheese Alternate Products'' Specifications From

the National School Lunch Program

AGENCY: Food and Consumer Service, USDA.

ACTION: Final rule.

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SUMMARY: This final rule eliminates the specifications governing the

use of ``Cheese Alternate Products'' in the National School Lunch

Program (NSLP). The removal of these specifications should enable the

food industry more freedom to produce cheese substitute products for

use in the NSLP while maintaining program nutrition standards through

reliance on existing Food and Drug Administration rules.

EFFECTIVE DATE: July 19, 1996.

FOR FURTHER INFORMATION CONTACT:

Ms. Marion Hinners, (703) 305-2556.

SUPPLEMENTARY INFORMATION:

Executive Order 12866

This final rule has been determined to be not significant for

purposes of Executive Order 12866 and, therefore, has not been reviewed

by the Office of Management and Budget.

Regulatory Flexibility Act

This final rule has been reviewed with regard to the requirements

of the Regulatory Flexibility Act (5 U.S.C. 601 through 612). The

Administrator of the Food and Consumer Service has determined that this

final rule will not have a significant economic impact on a substantial

number of small entities. There are currently fewer than ten companies

participating in the Child Nutrition Programs (CNPs) affected by this

regulation. In addition, the removal of this regulation is expected to

reduce the regulatory burden on all companies producing a cheese

alternate type product and allow the use of a wider variety of products

than currently can be used in the CNPs.

Category of Federal Domestic Assistance

The National School Lunch Program and the Summer Food Service

Program for Children are listed in the Catalog of Federal Domestic

Assistance under No. 10.555 and 10.559, respectively, and are subject

to the provisions of Executive Order 12372 which requires

intergovernmental consultation with State and local officials. (7 CFR

part 3015, subpart V and final rule related notice at 48 FR 29112, June

24, 1983.)

Executive Order 12778

This final rule has been reviewed under Executive Order 12778,

Civil Justice Reform. This final rule is intended to have preemptive

effect with respect to any State or local laws, regulations, or

policies which conflict with its provisions or would otherwise impede

its full implementation. This final rule is not intended to have

retroactive effect unless specified in the Effective Date section of

this preamble. Prior to any judicial challenge to the provisions of

this final rule or the application of the provisions, all applicable

administrative procedures must be exhausted.

Information Collection

This final rule contains no new information collection requirements

which are subject to review by the Office of Management and Budget

under the Paperwork Reduction Act of 1980 (44 U.S.C. Chapter 35).

Background

Cheese alternates are used primarily as economical replacements for

natural or processed cheese in the National School Lunch Program

(NSLP). Cheese alternates are a class of products currently required to

be made from conventional ingredients which must meet nutritional and

physical specifications set forth in the NSLP regulations in 7 CFR part

210, Appendix A--Alternate Foods for Meals (appendix A to part 210) in

order to be used as a food component contributing to the NSLP meal

patterns.

The Department published a proposed rule to remove the ``Cheese

Alternate Products'' specifications from the NSLP in the Federal

Register on September 27, 1995 (60 FR 49807). The Department accepted

comments on the proposal until November 13, 1995. One commenter

requested an extension of the comment period. A subsequent Federal

Register publication on November 27, 1995 (60 FR 58252) reopened the

comment period until December 27, 1995.

FCS received a total of 25 comments on the proposed rule. Five

comments were from the state or federal government agencies, five were

from School Food Authorities, six were from private companies and nine

were from trade associations. Eighteen commenters were generally

supportive of FCS proposals: five of those were from private industry

and six from trade organizations. Seven commenters opposed or advocated

major changes to the proposal. Of these seven, two were trade

organizations for dairy interests and one was a private manufacturer.

Commenters who supported the proposal cited positive changes

including that the proposal would: (1) Allow use of alternate protein

sources, (2) provide more flexibility in meeting the Dietary Guidelines

for Americans, (3) reduce food costs, (4) increase the number of

products available, (5) allow for more consistency between the food-

based and nutrient-based menu planning systems used in the NSLP, (6)

increase availability of lower fat and lower saturated fat products,

(7) reduce regulatory burden, (8) eliminate costly, lengthy product

evaluations on the part of industry, (9) increase products for

vegetarians and individuals with dairy product allergies, (10) allow

for reduction in cholesterol and calories and, (11) allow for the

protein digestibility-corrected amino acid score for assessing protein

quality.

The negative comments were varied. One of the government commenters

was concerned about the nutritional impact

[[Page 37671]]

of this change, particularly the reduced zinc adsorption if more

phytate-containing foods (e.g. soy-based cheese substitutes) were used.

FCS does not anticipate that removal of the cheese alternate

specifications will cause use of cheese substitutes to increase to the

extent that the bioavailability of nutrients such as zinc will be

compromised.

A School Food Authority commented that the nutritional quality and

physical characteristics of substitute cheese would be inferior to

natural cheese and that a sodium level should be specified because

cheese substitutes generally have a higher sodium level. Food and Drug

Administration (FDA) labeling regulations (21 CFR 101.3) require

products labeled as ``substitutes'' (e.g., cheese substitutes) to be

``not nutritionally inferior'' to the product for which they substitute

(e.g., cheese). As noted in the proposed rule, FCS is adding ``cheese

substitutes'' to the Food Buying Guide for Child Nutrition Programs

(FBG), Program Aid Number 1331. Schools and FCS use the FBG to

determine what meal components are reimbursable for schools using food

based menu planning. Thus the inclusion in the FBG of cheese

substitutes should help insure that nutritional quality is maintained,

since items labeled as cheese substitutes must be ``not nutritionally

inferior'' to cheese. Moreover, section 9(f) of the National School

Lunch Act (42 U.S.C. 1758(f)) requires that school meals meet the

Dietary Guidelines for Americans (Dietary Guidelines), jointly

published by the Department of Agriculture and the Department of Health

and Human Services. The Dietary Guidelines provide for moderating salt

and sodium intake, and schools are expected to comply. As has always

been true, schools must make the final decision on what to buy based on

good menu planning practices as well as flavor, functional

characteristics, and student acceptance. Schools electing to use a

higher sodium cheese substitute can, and should, reduce the sodium

contributed to the meal from other sources.

Trade association and private industry commenters generally agreed

that FCS should eliminate the current requirement that cheese

alternates must be used in combination with at least 50 percent natural

cheese because there was no nutritional basis to keep the requirement.

One School Food Authority thought this requirement should be retained

to help maintain the nutritional integrity and physical properties of

cheese substitutes. FCS believes that nutritional quality will be

maintained by the FDA standard and that the physical properties will

not vary appreciably from current cheese substitutes, since their

marketplace acceptability is partly a function of these properties.

One private industry commenter was against the proposal because of

the possibility for abuse by manufacturers to supply inferior cheese

products. FCS believes manufacturers will have no increased opportunity

for abuse beyond their opportunity in the current approval system. As

stated above, the nutritional integrity of a cheese substitute is

maintained through compliance with FDA requirements and by inclusion of

FDA labeled cheese substitutes in the FBG. Further, FCS believes that

the functionality of cheese substitutes will also be maintained through

marketplace pressures, because their acceptability is dependent upon

their functional characteristics.

Both trade association and private industry commenters thought that

a protein quality requirement should be retained because FDA

regulations prohibits a substitute from containing a lesser amount of

protein while making no direct provisions for protein quality. Because

of this concern, FCS contacted FDA early in the regulatory process for

clarification of their regulation. In a letter to William E. Ludwig,

the Administrator of FCS, Dr. F. Edward Scarbrough, the Director of the

FDA's Office of Food Labeling, stated that: ``a substitute food must be

able to support the same nutrition claims as the reference food, and

since the protein claim for the reference food must include protein

quality, the substitute food must also account for protein quality.''

Referring to FDA regulations, he went on to say ``the (FDA) believes

that (21 CFR) 101.3(e)(4) maintains its long standing policy that

protein quality is a factor in determining if a substitute food is

nutritionally inferior to a reference food.'' Because FDA considers

protein quality when determining whether a substitute food is

``nutritionally inferior'', FCS believes that protein quality standards

will be maintained when products labeled as ``cheese substitutes'' are

used. Therefore, FCS does not need to define an independent protein

quality requirement for cheese substitutes.

Accordingly, this final rule is being published without changes

from FCS' proposed rulemaking. Upon publication this final rule removes

the section entitled ``Cheese Alternate Products'' Appendix A to part

210--Alternate Foods for Meals. The removal of the cheese alternate

products section from appendix A to part 210 eliminates FCS

specifications for use of cheese alternates as meat alternates. This

change allows the use of cheese substitutes that are consistent with

FDA regulations which allow for fat and calorie reductions. This change

adds to the choice of products available to food service managers while

reducing processors' regulatory burdens. In addition, the removal of

the cheese alternate products specifications is consistent with the

Department's ongoing efforts to promote school meals that meet the

Dietary Guidelines and is consistent with National Performance Review

goals of reducing unnecessary federal regulations. Note that the

removal of this specification also means that the cheese alternate

label statements currently required by the FCS specification will no

longer be required. FCS expects that companies that have currently

approved labels with these statements will discontinue use of these

statements as soon as it is reasonably possible but no longer than one

year from the effective date of this regulation.

List of Subjects

7 CFR Part 210

Children, Commodity School Program, Food Assistance Programs,

Grants programs-social programs, National School Lunch Program,

Nutrition, Reporting and recordkeeping requirements, Surplus

agricultural commodities.

7 CFR Part 225

Food Assistance Programs, Grant programs--Health, Infants and

Children.

For the reasons set forth in the preamble, 7 CFR parts 210 and 225

are amended as follows:

PART 210--NATIONAL SCHOOL LUNCH PROGRAM

1. The authority citation for 7 CFR part 210 continues to read as

follows:

Authority: 42 U.S.C. 1751-1760, 1779.

Sec. 210.10 [Amended]

2. In Sec. 210.10, the first sentence of paragraph (k)(3)(i) is

amended by removing the words ``cheese alternate products''.

Sec. 210.10a [Amended]

3. In Sec. 210.10a, the first sentence of paragraph (d)(2)(i) is

amended by removing the words ``cheese alternate products,''.

Appendix A to Part 210 [Amended]

4. In Appendix A to Part 210--Alternate Foods for Meals, the

section entitled ``Cheese Alternate Products'' is removed.

[[Page 37672]]

PART 225--SUMMER FOOD SERVICE PROGRAM

1. The authority citation for 7 CFR part 225 continues to read as

follows:

Authority: Secs. 9, 13 and 14, National School Lunch Act, as

amended (42 U.S.C. 1758, 1761 and 1762a).

Sec. 225.16 [Amended]

2. In Sec. 225.16, the first sentence of paragraph (f)(3) is

amended by removing the words ``cheese alternate products,''.

Dated: July 12, 1996.

William E. Ludwig,

Administrator, Food and Consumer Service.

[FR Doc. 96-18404 Filed 7-18-96; 8:45 am]

BILLING CODE 3410-30-M