On May 8, 2026, USDA’s Food and Nutrition Administration (FNA) issued a final rule that will soon have a profound impact on SNAP retailers nationwide, especially convenience stores and other small grocers. The final rule, entitled “Updated Staple Food Stocking Standards for Retailers in the Supplemental Nutrition Assistance Program,” is FNA’s latest effort in response to a requirement in the 2014 Farm Bill that increased the minimum number of staple food varieties in each of the four staple food groups from three to seven. The 2014 Farm Bill also amended the Food and Nutrition Act of 2008 to require retailers to carry at least one variety of perishable foods (fresh or frozen) in each of three staple food categories.
In response to these statutory enactments, FNA promulgated a final rule in December 2016 that outlined what constituted a “variety” in each of the four staple food categories. Congress was not pleased and, pursuant to Section 765 of the Consolidated Appropriations Act of 2017 and subsequent appropriations enactments, prohibited the agency from enforcing the variety provisions in the December 2016 Final Rule until after FNA modified what counted as acceptable staple food varieties for retailer eligibility. In April 2019, FNA published a proposed rule in response to Congress’ restrictions on implementation of the variety provisions of the 2016 Final Rule. For the next 5 1/2 years, FNA failed to finalize that proposed rule.
On September 25, 2025, FNA finally issued another proposed rule in yet another attempt to implement the Congressional directive in the 2014 Farm Bill. The September 2025 proposed rule again increased the number of varieties that most SNAP retailers must carry in each of the four staple food groups from three to seven and also required authorized retailers to carry at least one fresh or frozen variety in at least three (up from two) staple food categories.
More than seven months later, FNA issued its final rule. FNA’s attempt to define different varieties of staple food groups is a mixed bag for SNAP retailers. For example, the final rule subdivides dairy into twelve distinct categories and finally treats milk and cream as different varieties. Previously, FNA treated them as a single variety, even though the U.S. Food and Drug Administration established different standards of identity for both and the first listed ingredient in each is different. The final rule also treats plant-based alternatives (e.g., soy milk, almond milk, oat milk, etc.) as different varieties as well. Once it goes into effect, FNA will also treat powdered milk and shelf-stable milk as distinct varieties from perishable liquid milk. While the logic behind that distinction is perplexing, it should make satisfying the dairy staple food requirements easier for many SNAP retailers.
On the other hand, the final rule’s treatment of grains will make things much harder for many smaller retailers. For example, all breakfast cereals will be treated as a single variety, regardless of whether the primary ingredient is wheat, corn, oats, or other grains. Similarly, FNA will now treat most types of bread products, including sliced bread, bagels, buns, rolls, tortillas, pita, and croissants, as a single variety with one critical exception: whole wheat bread products will be a distinct variety from non-whole wheat break products. Similarly, all types of pasta, regardless of whether they are made from wheat, rice, chickpeas, or other grains, will also be treated as a single variety, except that whole wheat pasta will be treated as a separate variety from non-whole wheat pasta. And while flour will be treated as a separate category, it is likely that many smaller retailers may start stocking a small array of raw/dried grains, including rice, barley, quinoa, and rye in order to meet FNA’s revised variety requirements.
FNA’s treatment of the other two staple food groups, protein (formerly meat/poultry/fish) and fruits and vegetables, are relatively unchanged and are unlikely to be a major problem for SNAP retailers. It may also result in an increase in the availability of fresh fruits and vegetables in food deserts across the country. For example, SNAP retailers can satisfy the increased variety requirements by having three units of each of the following fruits and vegetables: apples, oranges, bananas, potatoes, lettuce, tomatoes, carrots, and onions. The protein category can be met by stocking three cans of tuna, chicken, sardines, and anchovies, along with three packages of bacon, three cartons of eggs, and three packs of beef hot dogs.
It is also important to note that while the final rule also revises the definition of “prepared food” to formally exclude foods that are only cut or sliced in stores (e.g. fresh fruit, deli meat, etc.), it still leaves many questions unanswered. For example, the term “prepared foods” is defined to include any “hot or cold food or beverages ready for immediate consumption that are assembled, cooked, mixed, or otherwise made ready for immediate consumption by the retailer on the premises of the firm.” Does “assembled” include fountain drinks from a soda machine made with concentrated syrup and water? Does it matter whether the drink is put into a cup by a clerk or a customer? What about potato salad and Cole slaw sold in plastic containers with lids? While these items can all be consumed immediately without additional preparation, few (but not all) SNAP beneficiaries likely eat potato salad while waiting in line to check out; on other hand, it is far more likely that drinks in cups will be consumed immediately. Why FNA, despite years of administrative litigation with retailers regarding these issues, did not address this in the final rule is disappointing.
What is clear is that in less than two months, grocers and convenience stores across the country will be required to comply with substantially increased variety requirements to remain SNAP-authorized retailers. Once the final rule goes into effect, most SNAP retailers will be required to stock at least 84 staple food items on a continuous basis in order to remain authorized, a substantial increase from the prior minimum of 36 units. Many SNAP retailers, especially those in impoverished areas, may have difficulty keeping the increased minimum variety of staple foods in stock at all times. If a store fails to have the minimum stock and variety of staples during a store visit conducted by an FNA contractor, retailers may find themselves facing the withdrawal of their SNAP authorization. However, SNAP retailers are required to keep purchase invoices and register receipts for at least one year pursuant to FNA requirements. Those that do should be able to submit documentation that they purchased the minimum number of staple food items during the 21 days prior to a store visit and may be able to save their store’s SNAP authorization. What is clear is that FNA will be vigorously enforcing the requirements of the new rule starting in early November 2026. Based thereon, SNAP retailers would be well advised to strictly adhere to the requirements of the final rule at all times.
Stewart Fried is a Principal at OFW Law in Washington, DC. Mr. Fried represents SNAP retailers across the United States before FNA and the federal courts.
