Introduction

The U.S. Department of Agriculture’s (USDA’s) Food and Nutrition Service (FNS) recently issued a final rule addressing school nutrition standards, both revising and finalizing its November 2020 proposed rule.¹

The final rule establishes transitional standards intended to support the continued provision of nutritious school meals as schools respond to and recover from the COVID-19 pandemic. These transitional standards will begin in school year (SY) 2022-2023 and are intended to run through SY 2023-2024. The transitional standards update the requirements for sodium, whole grains, and milk in school meals. In its announcement regarding this rulemaking, USDA explained that these transitional standards give “schools clarity on those standards for the coming school years, allowing them to gradually transition from the extraordinary circumstances caused by the pandemic to normal program operations and meal standards that are consistent with the latest nutrition science, as required by law.”

As a next step, FNS will engage in notice-and-comment rulemaking to update the meal pattern standards to more comprehensively reflect the Dietary Guidelines for Americans 2020-2025. FNS anticipates issuing a proposed rule in Fall 2022 that addresses the nutrition standards for SY 2024-2025 and beyond. We expect this proposed rule will address a standard for added sugars, among other things. Indeed, the Center for Science in the Public Interest (CSPI) recently petitioned FNS to establish an added sugars threshold for both school meals and competitive foods.

Background

The final rule is the culmination of a long procedural history related to the difficulty school operators have experienced in meeting the original nutrition standards for sodium, whole grains, and fluid milk. In 2012, FNS issued a final rule to align the school lunch and breakfast programs’ nutrition standards with the 2010 Dietary Guidelines for Americans, as required by the Healthy, Hunger-Free Kids Act of 2010.²  The 2012 rule established minimum requirements for the availability of fruits, vegetables, whole grains, and fat-free and low-fat fluid milk in school meals; maximum requirements for the levels of sodium, saturated and trans fat in meals; and minimum and maximum calorie requirements. In particular, the 2012 rule established a three-phase schedule for reducing sodium levels over the course of 10 years, with a final sodium target set for implementation by SY 2022-2023 of 430-500 mg for breakfast and 640-740 mg for lunch. With respect to whole grains, the rule required all grain products served in school meals beginning in SY 2014-2015 to be whole grain-rich.

Following the 2012 rule, Congress passed a series of appropriations bills with language allowing for flexibility in the implementation of sodium and whole grain targets. In November 2017, FNS published an interim final rule extending these sodium and whole grain flexibilities through SY 2018-2019.³ In December 2018, FNS issued a final rule⁴ that eliminated the final sodium target (thereby implementing the second of the three sodium targets instead), and the 100% whole grain-rich requirement (implementing instead a 50% whole grain-rich requirement). It also allowed local operators to permanently offer flavored, low-fat milk as part of school meals.

After the 2018 final rule was issued, CSPI and Healthy School Food Maryland filed a lawsuit alleging that the rule violated the Administrative Procedure Act (APA). In 2020, a U.S. district court struck down this final rule, holding that the rule was not a logical outgrowth of the agency's 2017 interim final rule, and sent the rule back to FNS for further proceedings.⁵  As a result of the court’s decisions, the 2012 standards for sodium and whole grains in school meals were reinstated.

In November 2020, FNS issued a proposed rule which would codify certain flexibilities established by the 2017 interim final rule.⁶ The proposed rule would have: allowed schools to permanently offer flavored, low-fat milk as part of school meals; implemented a 50% whole grain-rich requirement in school meals; and established a more gradual sodium reduction plan, which would have eliminated the final sodium target established by the 2012 rule. This final rule revises and finalizes the 2020 proposed rulemaking.

Updated Transitional Standards for Sodium, Whole Grains, and Milk

The final rule establishes transitional standards for sodium, whole grains, and milk in school meals. These transitional standards will begin in SY 2022-2023, and will run through SY 2023-2024. The rule establishes the following requirements:

• Sodium: The weekly sodium limit for school lunch and breakfast will remain at the current level in SY 2022-2023. For the school lunch program only, there will be a 10% decrease in the limit in SY 2023-2024. The Food and Drug Administration (FDA) has stated that this change is aligned with the agency’s recently released guidance that establishes voluntary sodium reduction targets for processed, packaged, and prepared foods in the U.S;
• Whole Grains: At least 80% of the grains served in school lunch and breakfast each week must be whole grain-rich; and
• Milk: Schools may offer flavored, low-fat (1%) milk for students in grades K-12 and for sale as a competitive beverage. Under the Child and Adult Care Food Program, providers may offer flavored, low-fat (1%) milk for participants ages six and older.

The detailed transitional sodium timeline and limits are:

All other nutrition standards, including fruit and vegetable requirements, will remain the same as the 2012 standards.

Next Steps

This final rule will become effective July 1, 2022, and is intended to cover two school years only: SY 2022-2023 and SY 2023-2024. FNS intends to issue a proposed rule in fall 2022 that will update school meal nutrition standards for the long term. The agency will seek input from schools, industry, and other stakeholders to inform the process, and expects to finalize that rule in time for implementation in SY 2024-2025. Should this process be delayed, the transitional standards will remain in effect until subsequent standards are promulgated.

The agency is accepting written comments on the provisions of this final rule, which are due by March 24, 2022. The agency is also inviting comments on future rulemaking to update the school meals standards, including “comments that may assist in a comprehensive assessment of impacts of the areas addressed in this rule.”

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We will continue to monitor FNS’s regulation of child nutrition standards. Please contact us if you have any questions regarding this or any other matter.