USDA issues proposed rule to update school nutrition standards

USDA’s proposed rule would establish long-term nutrition standards for school meals, including new limits on added sugars (first, for specific categories of foods; and later, an overall limit of less than 10% of calories from added sugars per meal, averaged over one school week); further reductions in sodium targets; and updated whole grain and milk standards. The agency explained that the goal of the rulemaking is to provide for balanced, appealing, nutrient-dense food and beverage options with limits on added sugars, sodium, and calories. According to the agency, the proposed updates are designed to support the growth, health, and well-being of kids and address a rise in diet-related diseases among children. When finalized this rule will affect all food manufacturers producing product for the school meals programs and reflects further alignment of federal nutrition policy with the DGA and an emphasis on added sugars, sodium, and whole grains. 

Background

The proposed rule follows a long procedural history¹ related to the difficulty school operators experienced in meeting USDA’s 2012 school nutrition standards for sodium, milk, and whole grains, which implemented the Healthy, Hunger-Free Kids Act of 2010. Congress and USDA addressed the need for flexibility in multiple appropriations bills and a 2017 interim final rule extending those flexibilities, respectively. In 2018, USDA published a final rule eliminating some of the more restrictive requirements of the original 2012 standards, but in a 2020 decision, a U.S. district court held that this rule violated the Administrative Procedure Act, sending the rule back to the agency for further proceedings. USDA then conducted rulemaking that resulted in a February 2022 final rule that established transitional nutrition standards for school meals. The transitional standards were intended to apply to the 2022-2023 and 2023-2024 school years only, until long-term standards could be established.

This rulemaking proposes those long-term nutrition standards. The standards, once finalized, would take effect in the 2024-2025 school year and therefore align with the agency’s previously-proposed timeline. In the preamble to this proposed rule, USDA indicated that it expects to issue the final rule in time for affected parties to plan for the 2024-2025 school year.

Proposed Standards

The proposed rule² includes a number of new and revised standards for added sugars, sodium, whole grains, and milk in school meals. We provide a summary of the proposed standards below. A chart comparing the current school nutrition standards with these proposed standards is attached as an appendix.

Added Sugars

The proposed rule would impose the first-ever added sugars standards in the school meals program and outlines two coordinated approaches intended to reduce added sugars in school meals.  First, USDA proposes to implement product-based quantitative limits for the following products that USDA has identified as the leading sources of added sugars in school meals, beginning school year (SY) 2025-2026:³

Second, beginning SY 2027-2028 and in addition to the product-specific limits above, USDA proposes to implement an overall added sugars limit that would apply across the weekly menu and that would limit school breakfasts and lunches to an average of less than 10 percent of daily calories per meal from added sugars.

Sodium

The current transitional standards for the school lunch program call for a 10% reduction in the sodium limit for SY 2023-2024, and apply to the average school lunch and breakfast offerings on a weekly basis.⁵ The proposed rule establishes phased-in sodium reductions in increments of 10 percent per school year, with three phased reductions for lunches and two phased reductions for breakfasts. The final sodium targets would be at 810-935 mg for lunches and 435-520 mg for breakfasts, in comparison to the original 2012 final rule that had final sodium targets of 640-740 mg for lunches and 430-500 mg for breakfasts.

Transitional vs. Proposed National School Lunch Program Sodium Limits

Transitional vs. Proposed School Breakfast Program Sodium Limits

Whole Grains

The current transitional standards require at least 80 percent of the weekly grains offered in school meals to be whole grain-rich (i.e., at least 50 percent whole grain, with all other grain ingredients enriched, bran, or germ).⁵ The remaining grain items offered in school meals must be enriched. USDA has proposed two possible alternatives to these standards and invites public comment on both:

• Alternative A: Maintain the current 80 percent requirement.
• Alternative B: All grains offered in school meals would need to meet the whole grain-rich requirement, except that one day each school week, schools may offer enriched grains.

Milk

Current regulations allow schools to offer fat-free and low-fat (1 percent fat) flavored or unflavored milk in reimbursable school meals, for sale as a competitive beverage, in the Child and Adult Care Food Program (CACFP), and for participants aged 6 and older in the Special Milk Program (SMP). Unflavored milk must be offered at each school meal. USDA has proposed two possible alternatives to these standards and invites public comment on both:

• Alternative A: Allow flavored milk (fat-free and low-fat, subject to the proposed added sugars limits discussed above) at school lunch and breakfast for Grades 9-12 only, effective SY 2025-2026. Grades K-8 would be limited to unflavored fat-free and low-fat milk. USDA is requesting public comment on whether to permit flavored milk for Grades 6-12, instead.
• Alternative B: Maintain the current standard allowing schools to offer flavored and unflavored fat-free and low-fat milk for lunch and breakfast, subject to the proposed added sugars limits discussed above.

Under both alternatives, all flavored milk would be subject to the proposed added sugars limits, including flavored milk sold as a competitive food.

Other provisions

Finally, the rule also proposes a number of related updates.

• Buy American:  Current regulations require school food authorities to purchase domestic products to the maximum extent practicable, with limited exceptions related to product availability and cost.6 USDA proposes to maintain and codify the exemptions to the Buy American provision, but add a new 5 percent limit on the resources that can be used for non-domestic food purchases, which would apply when the school food authority is operating under these exceptions.
• Geographic Preference:  The rule proposes to expand geographic preference options to allow “locally grown,” “locally raised,” “locally caught,” and similar requirements as procurement specifications.
• Hummus Exception for Competitive Foods:  USDA proposes to add hummus to the list of foods exempt from the total fat standard currently in place for competitive foods (the regulations covering foods sold on school grounds during the school day but outside of the school meal program). For non-excepted competitive foods, total fat is not to exceed 35 percent of total calories from fat per item as packaged or served. Saturated fat must be less than 10 percent of total calories per item as packaged or served.

Apart from this hummus exception and the added sugars limits on flavored milk sold as a competitive food, the proposed rule does not make changes to the nutrition standards for competitive foods.

Next Steps

Comments are due April 10, 2023.⁷ Please contact us if you have any questions regarding this or any other matter.

Please click here for a chart comparing the current school nutrition standards with the proposed standards.

Authored by Elizabeth Fawell, Veronica Colas, and Rachel Buff.

References

1 HL Update, USDA issues final rule on sodium, whole grains, and fluid milk in school meals (Feb. 7, 2022), https://www.engage.hoganlovells.com/knowledgeservices/news/usda-issues-final-rule-on-sodium-whole-grains-and-fluid-milk-in-school-meals.

2 Child Nutrition Programs: Revisions to Meal Patterns Consistent With the 2020 Dietary Guidelines for Americans, 88 Fed. Reg. 8050 (Feb. 7, 2023), available at: https://www.federalregister.gov/documents/2023/02/07/2023-02102/child-nutrition-programs-revisions-to-meal-patterns-consistent-with-the-2020-dietary-guidelines-for. Additional resources can be found on USDA’s website: https://www.fns.usda.gov/cn/proposed-updates-school-nutrition-standards#:~:text=USDA%20proposes%20allowing%20schools%20to,on%20non%2Ddomestic%20food%20purchases.  

3 USDA proposes that product-based limits for breakfast cereals and yogurts would also apply to the Child and Adult Care Food Program (CACFP).

4 Before the implementation of these February 2022 transitional standards, the standards had called for only one phase of sodium reduction, to take effect SY 2024-2025, which would have reduced the limits by 10%.

5 The original 2012 standards would have required a 100% whole grain-rich standard, while the 2018 final rule would have required a 50% whole-grain rich standard.

6 The two exceptions apply when: (1) the product is not produced or manufactured in the U.S. in sufficient and reasonably available quantities of a satisfactory quality; or (2) competitive bids reveal the costs of a U.S. product are significantly higher than the non-domestic product.

7 Comments can be submitted at https://www.regulations.gov/. Docket No. FNS-2022-0043.