On April 13, the US District Court in Maryland sided with the Center for Science in the Public Interest and Healthy School Food Maryland when it vacated and sent back to the US Department of Agriculture for “further proceedings” the 2018 Final Rule Child Nutrition Programs: Flexibilities for Milk, Whole Grains, and Sodium Requirements.
The rule, which took many by surprise, delayed or eliminated several elements of the Healthy Hunger-Free Kids Act of 2010, which set limits on saturated fat, sodium and calories for meals served to school children and increased the amount of fruits, vegetables and whole grains that schools must offer.
Recognizing that schools likely would struggle to meet the stricter standards initially and children may need time for their taste preferences to adjust, the Act allowed for some standards to be phased in, including sodium-reduction targets, which were broken into three phases.
However, the 2018 rule delayed the compliance date for the second sodium-reduction target and eliminated the third. It also changed the requirement for whole grains so that only half of grain-based foods needed to be whole-grain-rich.
In the lawsuit, CSPI and Healthy School Food Maryland argued that the final rule “substantially weakens nutrition standards” and puts “approximately 30 million children, including approximately 22 million low-income children, at greater risk of health issues associated with diets high in sodium and low in whole grains.” As such, the lawsuit contended, USDA violated the Administrative Procedure Act and the National School Lunch Act.
The suit also argued that rule violated these acts because it was inconsistent with federal statutes governing school meal programs, “reflects unexplained and arbitrary decision-making,” does not explain the agency’s change in position and failed to appropriately respond to public comments.
The court dismissed these arguments, but agreed with CSPI and Healthy School Food Maryland that the final rule was “not a logical outgrowth of the Interim Final Rule, so it must be vacated and remanded to the administrative agency for further proceedings.”
“Not a logical outgrowth of the Interim Final Rule”
The court explained that the Final Rule was not “in character with the original scheme” of the notice and comments given in that the Interim Final Rule, which “spoke exclusively in terms of delaying compliance requirements, not abandoning the compliance requirements altogether.”
This argument applied both to USDA’s decision to nix the third phase of sodium reduction and to eliminate the 100% whole grain requirement.
“With respect to the whole grains, the Interim Final Rule specifically ‘retain[ed] the whole-grain regulatory requirement’ of 100% whole grains, while also extending the availability of exemption, upon request,” the court noted.
It added “because the Interim Final Rule ‘gave no indication that the agency was considering a different approach [from delaying compliance with Sodium Target 1 or offering a hardship exemption to the whole grain requirement], and the final rule revealed that the agency had completely changed its position,’ the Interim Final Notice did not provide sufficient notice of the Final Rule” and “therefore violates the APA and will be vacated and remanded to the administrative agency for further proceedings.”
CSPI responded by calling the decision “a critical victory,” and urged USDA to update the sodium-reduction targets to reflect even lower permissible levels, rather than weaken or remove them.
SNA urges ‘quick action to restore school meal flexibilities’
As a long-time, vocal supporter of the 2018 Final Rule, the School Nutrition Association urged USDA to take “quick action to restore school meal flexibilities” in the now invalidated rule.
In an April 15 letter to USDA Sec. Sonny Perdue, SNA notes that the court ruling found the final rule “not inconsistent” with federal statutes, but rather simply was hung-up in a “fault … in the rulemaking process.”
If not for this technicality, SNA suggests the “flexibility provided under the Final Rule” would have withstood the court’s scrutiny.
Indeed, it points out the court found “the Final Rule shows that USDA used its expertise to balance the nutrition science in the Dietary Guidelines with the practical considerations of implementation,” and that “USDA did not improperly consider student taste preferences, operational flexibilities, and the role of product innovation at the expense of student health and nutritional science, but instead balanced these considerations against each other.”
SNA further notes that the Final Rule “preserved strong standards, including Target 1 sodium reductions and limits on calories and fat, which ensure school meals do not contribute to obesity.”
The trade group concludes that USDA must act fast to reinstate those flexibilities to “ease the burden on school meal programs working to meet the increased need for school meals following COVID-19 closures,” which has further complicated compliance by triggering supply chain disruptions and shortages of ingredients needed to “meet highly specialized school nutrition standards.”