On February 8, 2013, the Food and Nutrition Service (FNS) of the United States Department of Agriculture (USDA) issued a proposed rule entitled “Nutrition Standards for All Foods Sold in School as Required by the Healthy, Hunger-Free Kids Act of 2010” (the proposed rule). The proposed rule can be found here. Public comments are invited for 60 days from the date of publication, with comments due April 9, 2013.
Section 208 (Sec. 208) of the Healthy, Hunger-Free Kids Act of 2010 (HHFKA) amends Section 10 of the Child Nutrition Act of 1966 (42 U.S.C. 1779) to require the Secretary of Agriculture (the Secretary) to develop science based nutrition standards for all foods sold ‘‘(i) outside the school meal programs; (ii) on the school campus; and (iii) at any time during the school day.” As a result, the proposed rule establishes nutrition standards for all foods sold from the midnight before, to 30 minutes after the end of the official school day in vending machines, school stores, snack bars, and a la carte sales. Sec. 208 further requires that this rule be consistent with the most recent Dietary Guidelines for Americans and that the Secretary shall consider authoritative scientific recommendations for nutrition standards; existing school nutrition standards, including voluntary standards for beverages and snack foods; current State and local standards; the practical application of the nutrition standards; and special exemptions for infrequent school-sponsored fundraisers other than fundraising through vending machines, school stores, snack bars, a la carte sales and any other exclusions determined by the Secretary.
It is projected that the proposed rule will impact 90,000 public schools, 6,000 private schools, and about 5,000 residential child care institutions that participate in the NSLP. About 95 percent of competitive food sales revenue accrues to school food authorities, while the remaining five percent go to other school groups, such as student clubs, parent teacher organizations, or parent booster organizations.
These proposed standards for food and beverages are intended to be the minimum standards that local educational agencies, school food authorities and schools would be required to meet. State agencies and/or local schools are given the discretion to establish their own standards for non-program foods sold to children should they wish to do so, as long as such standards are consistent with the final minimum standards. This discretion is intended to provide some measure of flexibility, given that many states and localities already have their own standards in place, some of which are already more stringent than those in the proposed rule.
The proposed rule does not include or exclude specific food items. Rather, it proposes standards, with a limited number of exceptions, for foods and beverages based on fat, saturated fat, sugar, and sodium content much like those in use as part of the NSLP and the School Breakfast Program (SBP). There are caloric limitations on portion sizes, with limited variation for different grade levels. Portions of the Food and Beverage Requirements follow :
“Food Requirements – Under the proposed rule, any food sold in schools must:
- Be either a fruit, a vegetable, a dairy product, a protein food, a “whole-grain rich” grain product (50% or more whole grains by weight or have whole grains as the first ingredient), or a combination food that contains at least ¼ cup of fruit or vegetable; or
- Contain 10% of the Daily Value (DV) of a nutrient cited as a public health concern in the 2010 Dietary Guidelines for Americans (DGA) (calcium, potassium, vitamin D, or fiber).
Additionally, foods sold must meet a range of calorie and nutrient requirements:
- Total fat must be ≤35% of calories; saturated fat must be <10% of calories; and trans fat must be 0g as stated on the label. Exemptions are provided for reduced fat cheese; nuts and nut butters without other ingredients and seafood with no added fat.
- Snack items shall contain ≤200 milligrams of sodium. For entrée items, sodium levels must be ≤480 milligrams per portion, for non-NSLP/SBP entrée items.
- For total sugar levels the proposal includes two alternatives: one is ≤35% of calories and the other is ≤35% of weight. Exemptions are provided for fruits and vegetables packed in juice or extra-light syrup and for certain yogurts.
- Snack items have a limit on calories of ≤200 calories per portion. Non- NSLP/SBP entrée items have a calorie limit of ≤350 calories.
“Beverage Requirements – Under the proposal, all schools may sell plain water, plain low fat milk, plain or flavored fat-free milk and milk alternatives permitted by NSLP/SBP, and 100% fruit/vegetable juice. Portion sizes of milk and juice vary by the age of students. Elementary schools may sell up to 8-ounce portions. Middle schools and high schools may sell up to 12-ounce portions.
Beyond this, the proposal offers additional beverage options in high schools. These include 20 ounce servings or less for calorie-free, flavored and/or unflavored carbonated water and other calorie-free beverages that comply with the Food and Drug Administration (FDA) standard of <5 cals/serving.
Additionally, the proposal would allow 12 ounce servings of other beverages within a specified calorie limit. The proposal offers two alternatives for this limit. The first is ≤ 40 cals/8 oz serving (or ≤ 60 cals/12 oz serving), and the second is 50 cals/8 oz serving (or 75 cals/12 oz serving).
Such beverages shall not be available in the meal service area during the meal service periods.”
The proposed rule also allows exceptions for foods sold as part of infrequent fundraising activities. All foods that meet the proposed standards could be sold during fundraisers during school hours. The proposed standards would not apply to items sold during non-school hours, weekends or off-campus fundraising events, such as concessions during sporting events and school plays.
The Secretary is also required, in the future, to review and update as necessary the school nutrition standards and requirements as soon as practicable after the publication of a new edition of the Dietary Guidelines for Americans.
The proposed rule does not provide any requirements for the posting of nutrient information for competitive foods.
FNS has issued a brief Question and Answer document regarding the proposed rule, which can be found here. This document does explicitly state that USDA has no role in regulating foods brought from home, and birthday treats are not subject to the standards.
 Click here for more information about the HealthierUS School Challenge Program.
 78 Fed. Reg. 9548 (February 8, 2013).