In 1964, Congress enacted the Food Stamp Act, making the food stamp program permanent. The same year, 23-year-old Bob Dylan released “The Times They Are a-Changin’.” During the past six decades, the food stamp program – which was renamed as the Supplemental Nutrition Assistance Program (SNAP), has undergone a wide variety of changes. But one facet has remained relatively constant – the definition of “food” in the law has remained broad.
For the last 17 years, SNAP benefits can generally be used to purchase “any food or food product for home consumption” with the exception of alcoholic beverages, tobacco, and hot foods. 7 U.S.C. § 2012(k). SNAP-eligible foods are categorized by USDA’s Food & Nutrition Service (FNS) as staples or accessories. Staple food items include fruits, vegetables, dairy products, meat, poultry, fish, seafood, breads, cereals, and grains. Most other eligible food items are described by FNS as “accessory foods,” including soda, candy, chips, ice cream, and other snack food items.
Since the origins of the food stamp program, opposition to a broad definition of food in the Act has existed. The original House of Representatives bill in 1964 proposed a far narrower definition of food than proposed in the Senate. The Senate version was enacted and a broad definition of food remains federal law. However, there is a broad movement to exclude “junk food” from SNAP eligibility. In a variety of conservative jurisdictions, including Idaho, Arkansas, Missouri, Kansas, and Texas, state legislators have proposed legislation that directs state SNAP agencies to request waivers from FNS that would exclude beneficiaries from being able to use SNAP benefits to purchase candy and soda. Over in Congress, Tennessee congressman Josh Brecheen introduced the Healthy SNAP Act of 2025. The bill, if passed by the Senate and House of Representatives and signed into law by President Trump, would expand the list of food items that would no longer be eligible to purchase with SNAP benefits, including soft drinks, candy, ice cream, cakes, pies, cookies, and similar products.
These federal and state efforts are generally supported by Robert F. Kennedy, Jr., the new Secretary of the U.S. Department of Health and Human Services. RFK Jr. is the architect of an effort to Make America Healthy Again (MAHA). On February 13, 2025, President Trump issued an Executive Order establishing the MAHA Commission with RFK Jr. as its chair. But SNAP is a program administered by FNS, not HHS, and the MAHA Commission has no authority to modify the Food & Nutrition Act of 2008, as amended, or FNS’s SNAP regulations. However, it is far from clear that RFK or the MAHA Commission can take any action to remove “junk food” from being SNAP-eligible items.
Similarly, states have no authority to modify federal law or FNS’s SNAP regulations. At most, state SNAP agencies can request a waiver from FNS. And while USDA Secretary Rollins appears to be supportive of efforts to limit the ability of SNAP beneficiaries to use benefits to purchase junk food, her ability to do so is sharply limited by federal law. 7 U.S.C. § 2026(b)(1) permits the USDA Secretary to “conduct on a trial basis, in one or more areas of the United States, pilot or experimental projects designed to test program changes that might increase the efficiency of the supplemental nutrition assistance program and improve the delivery of supplemental nutrition assistance program benefits to eligible households, and may waive any requirement of this chapter to the extent necessary for the project to be conducted.” 7 C.F.R. §§ 272.3 and 282.1 contain FNS’s regulations regarding waivers. 7 C.F.R. § 272.3 prohibits FNS from granting waivers that “would be inconsistent with the provisions of the Act.” 7 C.F.R. § 282.1 requires the agency to publish a notice in the Federal Register not less than 30 days before initiation of any demonstration project likely to have a “significant impact on the public.”
To date, all requests for waivers from state SNAP agencies that sought to modify the definition of “food” were denied, including during the first Trump Administration. In addition to a policy reasons supporting denial of waivers and sharp opposition from anti-hunger groups, retailers, snack food manufacturers, bottlers, and confectioners, the primary reason that waivers requests were previously denied was that they did not meet the requirements under the law or FNS’s guidance for demonstration project or administrative waivers. It is difficult to comprehend how FNS might justify granting a waiver that would preclude SNAP beneficiaries from using benefits to purchase soda or candy as something that would make the SNAP program “more efficient” or “improve the delivery of” SNAP benefits to eligible households.” Moreover, given that USDA’s Office of Inspector General, in January 2023, issued an Audit Report concluding that FNS did not “sufficiently or consistently develop and document policies and procedures for the waiver process,” it is unclear whether FNS even has legally appropriate policies and procedures to follow.
Whether Secretary Rollins will grant waivers from state SNAP agencies that would preclude soda and candy from being SNAP-eligible items in one or more states remains to be seen. While her public comments, along with likely pressure from President Trump and RFK Jr., appear to indicate a strong likelihood of that happening, granting waivers to eliminate junk food from SNAP-eligibility will have massive economic and other impacts on tens of millions of Americans. Although FNS has not updated its SNAP Data Tables since November 2024, nearly 43 million American received SNAP benefits last fall. Additionally, millions of Americans work in supermarkets, grocery stores, convenience stores, and food manufacturing facilities. Many SNAP-authorized retailers are likely to shut down, thereby increasing the size of food deserts in impoverished area across the country and increasing the number of under employed and unemployed Americans. That will, in turn, result in increases in the number of SNAP beneficiaries, resulting in an expansion of the SNAP program.
In the event that Secretary Rollins grants one or more waivers to state SNAP agencies, one result is nearly guaranteed: lawsuits challenging her actions as ultra vires will be filed in federal court. Given the restrictive verbiage in the law and FNS’s SNAP regulations governing SNAP waivers, complaints that challenge SNAP waivers that have the effect of amending the definition of “food” would appear to have a high likelihood of success as being violative of the Administrative Procedure Act and the Food & Nutrition Act.
Recently, the Department was required to rehire more than 5,000 probationary employees who were terminated following pressure from Elon Musk and DOGE, because its actions were held to be arbitrary and capricious, as well as illegal. USDA should take care to closely follow the law and its own SNAP regulations, especially considering that improvidently issued SNAP waivers would adversely impact millions of Americans and hundreds of thousands of SNAP-authorized retailers.
