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Rule2024-07437

Special Supplemental Nutrition Program for Women, Infants, and Children (WIC): Revisions in the WIC Food Packages

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Published

April 18, 2024

Effective

June 17, 2024

Issuing agencies

Agriculture DepartmentFood and Nutrition Service

Abstract

This final rule considers public comments submitted in response to the proposed rule revising the WIC food packages published on November 21, 2022. It revises regulations to align the WIC food packages with the current Dietary Guidelines for Americans and to reflect recommendations from the National Academies of Science, Engineering, and Medicine while promoting nutrition security and equity and considering program administration. The changes are intended to provide WIC participants with a wider variety of foods that align with the latest nutritional science; provide WIC State agencies with greater flexibility to prescribe and tailor food packages that accommodate participants' special dietary needs and personal and cultural food preferences; and address key nutritional needs to support healthy dietary patterns. This rule provides foods in amounts that are more consistent with the supplemental nature of the Program; encourages fruit and vegetable consumption; and strengthens support for individual breastfeeding goals to help establish long-term breastfeeding.

Full Text

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[Federal Register Volume 89, Number 76 (Thursday, April 18, 2024)]
[Rules and Regulations]
[Pages 28488-28567]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-07437]

[[Page 28487]]

Vol. 89

Thursday,

No. 76

April 18, 2024

Part IV

Department of Agriculture

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Food and Nutrition Service

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7 CFR Part 246

Special Supplemental Nutrition Program for Women, Infants, and Children
(WIC): Revisions in the WIC Food Packages; Final Rule

Federal Register / Vol. 89 , No. 76 / Thursday, April 18, 2024 /
Rules and Regulations

[[Page 28488]]

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DEPARTMENT OF AGRICULTURE

Food and Nutrition Service

7 CFR Part 246

[FNS-2022-0007]
RIN 0584-AE82

Special Supplemental Nutrition Program for Women, Infants, and
Children (WIC): Revisions in the WIC Food Packages

AGENCY: Food and Nutrition Service (FNS), Department of Agriculture
(USDA).

ACTION: Final rule.

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SUMMARY: This final rule considers public comments submitted in
response to the proposed rule revising the WIC food packages published
on November 21, 2022. It revises regulations to align the WIC food
packages with the current Dietary Guidelines for Americans and to
reflect recommendations from the National Academies of Science,
Engineering, and Medicine while promoting nutrition security and equity
and considering program administration. The changes are intended to
provide WIC participants with a wider variety of foods that align with
the latest nutritional science; provide WIC State agencies with greater
flexibility to prescribe and tailor food packages that accommodate
participants' special dietary needs and personal and cultural food
preferences; and address key nutritional needs to support healthy
dietary patterns. This rule provides foods in amounts that are more
consistent with the supplemental nature of the Program; encourages
fruit and vegetable consumption; and strengthens support for individual
breastfeeding goals to help establish long-term breastfeeding.

DATES:
Effective date: This rule is effective June 17, 2024.
Implementation dates: See section V of the SUPPLEMENTARY
INFORMATION.
Compliance dates: This rulemaking consists of multiple provisions.
Compliance for each provision is referenced in the SUPPLEMENTARY
INFORMATION section of this final rule and detailed in the section-by-
section analysis.
<bullet> Severability. If any provision of such section promulgated
through this final rule, ``Special Supplemental Nutrition Program for
Women, Infants, and Children (WIC): Revisions in the WIC Food
Packages'' (FNS-2022-0007; RIN 0854-AE82), is held to be invalid or
unenforceable by its terms, or as applied to any person or
circumstances, it shall be severable and not affect the remainder
thereof.

FOR FURTHER INFORMATION CONTACT: Allison Post, Chief, Administration,
Benefits, and Certification Branch, Policy Division, Food and Nutrition
Service, USDA, 1320 Braddock Place, Alexandria, Virginia, 22314, (703)
305-2746 OR <a href="/cdn-cgi/l/email-protection#9bdaf7f7f2e8f4f5b5cbf4e8efdbeee8fffab5fcf4ed">[email&#160;protected]</a>.

SUPPLEMENTARY INFORMATION:

Table of Abbreviations

APA--Administrative Procedure Act
APL--Authorized Products List
AAP--American Academy of Pediatrics
CVV--Cash-Value Voucher
DGA--Dietary Guidelines for Americans
EBT--Electronic Benefit Transfer
FDA--U.S. Food and Drug Administration
FNB--Full Nutrition Benefit
FNS--Food and Nutrition Service
kcal--Kilocalorie
MIS--Management Information Systems
MMA--Maximum Monthly Allowance
NASEM--National Academies of Sciences, Engineering, and Medicine
USDA--United States Department of Agriculture (also referred to as
``the Department'')
WIC--Special Supplemental Nutrition Program for Women, Infants, and
Children

I. Background

WIC is a powerful, evidence-based public health program, with a
long history of improving health and developmental outcomes for
children. Through the WIC food packages, nutrition and breastfeeding
education, and referrals, WIC is uniquely positioned as an effective
tool to help reduce disparities in maternal and child health
outcomes.\1\ This final rule revises the WIC food packages to reflect
the latest nutritional guidance in the 2020-2025 DGA and
recommendations from NASEM while considering public comments to the
proposed rule ``Special Supplemental Nutrition Program for Women,
Infants, and Children (WIC): Revisions in the WIC Food Packages''
published on November 21, 2022 (87 FR 71090), hereafter referred to as
``the 2022 proposed rule.'' \2\ Informed by science-based
recommendations, the updated food packages continue to strengthen WIC
and build on its long history of improving participant health outcomes.
The changes made in this rule promote nutrition security and equitable
access to nutritious foods by:
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\1\ Caulfield LE, Bennett WL, Gross SM, Hurley KM, Ogunwole SM,
Venkataramani M, Lerman JL, Zhang A, Sharma R, Bass EB. Maternal and
Child Outcomes Associated With the Special Supplemental Nutrition
Program for Women, Infants, and Children (WIC). Comparative
Effectiveness Review No. 253. (Prepared by the Johns Hopkins
University Evidence-based Practice Center under Contract No.
75Q80120D00003.) AHRQ Publication No. 22-EHC019. Rockville, MD:
Agency for Healthcare Research and Quality; April 2022. DOI: <a href="https://doi.org/10.23970/AHRQEPCCER253">https://doi.org/10.23970/AHRQEPCCER253</a>.
\2\ The authorizing legislation for WIC uses the word ``women''
in the Program title and thus it is used in the title for this rule.
However, gender neutral language is used when possible throughout
this final rule.
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<bullet> Encouraging fruit and vegetable consumption.
<bullet> Addressing key nutritional needs to support healthy
dietary patterns.
<bullet> Providing greater flexibility, variety, and choice to
accommodate personal and cultural food preferences and special dietary
needs.
<bullet> Strengthening support for individual breastfeeding goals
to help establish long-term breastfeeding.
The Department is committed to advancing nutrition security and
health equity through this final rule, ensuring mothers, babies, and
young children have equitable access to the key nutrition they need
during crucial stages of growth and development.

A. Purpose of the WIC Food Packages

The WIC food packages provide supplemental foods designed to
address the specific nutritional needs of low-income pregnant,
breastfeeding, and non-breastfeeding postpartum individuals, infants,
and children up to five years of age who are at nutritional risk. Every
WIC participant receives a monthly food benefit from one of seven
science-based food packages, according to their participant category
and nutritional needs.
Participant Categories
The seven food packages available in the following participant
categories are:
(1) Food Package I: Infants birth through 5 months (Fully Breastfed,
Partially Breastfed, and Fully Formula Fed)
(2) Food Package II: Infants ages 6 through 11 months (Fully Breastfed,
Partially Breastfed, and Fully Formula Fed)
(3) Food Package III: Medically Fragile Women, Infants, and Children
(4) Food Package IV: Children ages 1 through 4 years
(5) Food Package V: Pregnant and Partially (Mostly) Breastfeeding Women
up to 1 year postpartum
(6) Food Package VI: Postpartum Women (minimally or non-breastfeeding)
up to 6 months postpartum
(7) Food Package VII: Fully Breastfeeding Women up to 1 year postpartum
Individual Nutrition Tailoring and Food Substitutions
As part of the WIC certification process, a comprehensive nutrition
(and

[[Page 28489]]

breastfeeding, as applicable) assessment is conducted for each WIC
participant. Through this process, food packages can be individually
tailored--by making substitutions, reductions, and/or eliminations to
the food type (e.g., dry beans vs. peanut butter) and physical food
forms (e.g., fluid vs. dry milk)--to accommodate the participant's
special dietary needs (e.g., a food allergy or intolerance), cultural
and personal preferences, and housing/living conditions (e.g., limited
resources to prepare food). During the nutrition assessment, WIC
participants also receive instructions on how to redeem their WIC food
benefits at retail vendors, including information about substitution
options. Through nutrition tailoring and the issuance of Food Package
III, WIC conforms with section 504 of the Rehabilitation Act by
providing participants with special dietary needs with the supplemental
foods that accommodate their medical needs.
Authorized Foods
Food categories and quantities, as well as minimum nutritional
requirements, are established at the Federal level and outlined in WIC
regulations at 7 CFR 246.10. Depending on the food package, the
authorized food categories include infant formula, cereal, and foods;
exempt infant formulas; WIC-eligible nutritionals; milk; cheese;
breakfast cereal; juice; fruits and vegetables; whole wheat/whole grain
bread; eggs; legumes and/or peanut butter; and canned fish.
The WIC Program is administered by 89 WIC State agencies, including
the 50 states, 33 Indian Tribal Organizations (ITOs), the District of
Columbia, and five U.S. Territories (the Commonwealth of the Northern
Mariana Islands, American Samoa, Guam, Puerto Rico, and the U.S. Virgin
Islands). In accordance with Federal WIC regulations, each WIC State
agency determines which eligible foods, including brands and package
sizes, will be made available to their participants. When creating
their APL, WIC State agencies consider a variety of factors including
participant acceptance and choice, product availability, and price. WIC
State agencies may establish criteria in addition to the Federal
minimum requirements (e.g., allow only low-sodium canned vegetables),
authorize substitution options specified in regulations (e.g., yogurt
as a substitute for milk), and/or implement administrative adjustments
to manage food costs (e.g., limiting brand types, specifying packaging
methods) based on these factors.
Redeeming WIC Foods
Participants redeem their food benefits (i.e., the foods included
in their prescribed food package) at retail vendors the WIC State
agency authorizes, and in some instances, through home delivery or
direct distribution systems the WIC State agency operates. Nationwide
there are approximately 40,000 WIC-authorized vendors.

B. Multi-Stage Scientific Approach To Revise the WIC Food Packages

This final rulemaking represents the third \3\ comprehensive
revision to the WIC food packages since Congress established WIC as a
permanent program in 1975. Consistent with this current rulemaking,
prior revisions were based in nutritional science.
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\3\ In 1980, USDA reorganized the WIC food packages from three
to six standardized packages marking the first comprehensive
revision. In 2007, the USDA published an interim rule revising the
WIC food packages marking the second comprehensive revision.
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The most recent comprehensive revision to the WIC food packages was
based on the Institute of Medicine's (now NASEM) 2006 report ``WIC Food
Packages: Time for a Change,'' which cited the health and nutrition
risks WIC's target population faced, including overweight and obesity;
diets lacking in whole grains, fruits, and vegetables; and short
duration of breastfeeding. USDA contracted with the Institute of
Medicine to complete this review and recommend cost-neutral changes to
the WIC food packages based on the nutritional needs of the WIC
population. The report provided the scientific basis for the proposed
rule to revise the WIC food packages published in August 2006 (71 FR
44784), which garnered broad support from public commenters, the
majority of whom were Program participants.
Reflecting the comments received, USDA published an interim rule in
December 2007 (72 FR 68966) that implemented revised WIC food packages.
Due to the extent and comprehensive nature of the revisions, the
Department provided an extended public comment period on the interim
rule to obtain comments on the impacts of implementing the new WIC food
packages. On March 4, 2014, USDA published the final rule ``Special
Supplemental Nutrition Program for Women, Infants and Children (WIC):
Revisions in the WIC Food Packages'' (79 FR 12274), hereafter referred
to as ``the 2014 final rule.'' The revisions in the 2014 final rule
aligned the WIC food packages with nutritional science current at the
time, aimed to promote and support the establishment of successful
long-term breastfeeding, provided participants with a wider variety of
foods, and provided WIC State agencies with greater flexibility in
prescribing WIC food packages to accommodate participants' cultural
food preferences. Key changes implemented through the 2014 final rule
and preceding interim final rule included:
Introduction of the CVV for the purchase of fruits and vegetables.
<bullet> Addition of whole grains (e.g., bread, tortillas, brown
rice, etc.).
<bullet> Addition of soy-based beverage, yogurt, and tofu as milk
alternatives.
<bullet> Reductions in some foods (e.g., milk, egg, and juice) to
better align with the supplemental nature of WIC.
<bullet> Allowance for participants in Food Package III to receive
all authorized WIC foods.
In 2014, USDA contracted with NASEM to conduct a second review of
the WIC food packages, in accordance with the Healthy, Hunger-Free Kids
Act of 2010 (Pub. L. 111-296, HHFKA), which requires USDA to conduct a
scientific review of the WIC food packages at least every ten years.
The Department charged NASEM with developing recommendations for
revising the WIC food packages to be consistent with the DGA and that
considered the health and cultural needs of WIC participants while
ensuring WIC remained cost-neutral, efficient for nationwide
distribution, and straightforward to administer. NASEM's process
included a comprehensive review and analysis of available scientific
evidence, including relevant published literature, National Health and
Nutrition Examination Survey (NHANES) 2005-2012 data, WIC food benefit
redemption data, the 2015-2020 DGA, and, for children under age 2
years, recommendations from expert authorities in the health of the WIC
population including the AAP, the Academy of Nutrition and Dietetics
(AND), and the World Health Organization. In 2017, NASEM published its
recommendations in the report, ``Review of WIC Food Packages: Improving
Balance and Choice: Final Report,'' which informed many of the
revisions in the 2022 proposed rule.
Using a systematic process, NASEM developed recommendations aimed
to ensure the WIC food packages:
<bullet> Provide a balanced supplement to the diets of women and
children.
<bullet> Contribute to reduced prevalence of inadequate and
excessive nutrient intake.

[[Page 28490]]

<bullet> Contribute to a dietary pattern that is consistent with
the 2015-2020 DGA for individuals 2 years of age and older.
<bullet> Contribute to a diet that is consistent with established
recommendations for infants and children less than 2 years of age,
including encouragement of and support for breastfeeding.
<bullet> Include foods that are available in forms and amounts
suitable for low-income persons who may have limited transportation
options, storage, and cooking facilities.
<bullet> Include foods that are readily acceptable, commonly
consumed, widely available, consider cultural eating patterns and food
preferences, and provide incentives for families to participate in the
WIC Program.
<bullet> Include foods that do not create an undue burden on WIC
State agencies or vendors.
NASEM's review emphasized the supplemental nature of the food
packages--meaning foods are provided as part of a balanced diet that
meets but does not exceed recommended amounts of foods and nutrients to
prevent overweight/obesity and/or displace other healthy and important
food groups and nutrients. Accordingly, NASEM designed food packages
that provide moderate proportions of individuals' nutrient requirements
and food group amounts recommended as part of a healthy dietary
pattern, and that prioritize nutrients that are under consumed and
associated with health outcomes relevant to the WIC-eligible
population. Finding that the current food packages provide varying
proportions of priority nutrients \4\ (between 5 and 400 percent of the
Dietary Reference Intake (DRI)) and recommended food group \5\ amounts
(between 0 and 177 percent of DGA recommended intake amounts), NASEM
recommended reducing foods provided in more-than-supplemental amounts
and increasing foods needed to improve intake of priority nutrients and
recommended food groups. NASEM provided recommendations for food
packages that achieve cost neutrality as requested by the Department.
However, also at the request of the Department, NASEM provided clear
alternative nutrition-based recommendations for consideration if cost
neutrality were not the prevailing principle in rulemaking. Since the
goal of this final rule is to follow science-based recommendations that
advance nutrition security and improve health equity, the Department
has accepted NASEM's alternative recommendations in regard to certain
food items such as the higher CVV.
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\4\ The 2017 NASEM Report discusses priority nutrients in
Chapter 05; Table 5.1 (page 217) summarizes the criteria used to
determine priority nutrients for the WIC-eligible population.
\5\ Recommended food groups include fruits, vegetables, grains,
protein foods, and dairy and alternatives, as established in the
Dietary Guidelines for Americans, 2020-2025 Healthy U.S.-Style
Dietary Patterns at various calorie levels for the WIC-eligible
population.
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Following the 2017 NASEM report, on December 29, 2020, the USDA and
the U.S. Department of Health and Human Services published the 2020-
2025 DGA, which provides science-based recommendations for healthy
dietary patterns by life stage and, for the first time since the 1985
edition, recommendations for infants, children up to 2 years of age,
and pregnant and breastfeeding individuals. To ensure the changes to
the WIC food packages aligned with the current dietary guidelines, USDA
conducted a thorough review of the 2020-2025 DGA and incorporated
relevant updates into the 2022 proposed rule.
The revisions to the food packages support WIC participants'
nutritional needs, achieve a better balance of nutrients, and align
with the supplemental nature of the Program. Nutrition security--
meaning consistent and equitable access to healthy, safe, and
affordable food essential to optimal health and well-being--is
prioritized over cost neutrality while the supplemental nature of the
WIC food packages remains central to the final revisions. The changes
to the WIC food packages are designed to:
<bullet> Provide additional flexibility, variety, and choice for
individuals with special dietary needs due to medical conditions,
limited cooking and/or storage facilities, and cultural and personal
preferences (including, but not limited to, vegan and vegetarian
diets), while ensuring the delivery of priority nutrients to WIC
participants.
<bullet> Consider marketplace availability of supplemental foods.
<bullet> Increase the actual and perceived value of the WIC food
packages to eligible populations.
<bullet> Improve equitable access to nutritious foods.
<bullet> Promote and support breastfeeding of all durations and
intensities.
<bullet> Provide foods in amounts that are more consistent with the
supplemental nature of the Program.
<bullet> Align with DGA guidance to follow a healthy dietary
pattern and meet, but not exceed, recommended food group and subgroup
amounts and nutrients appropriate for an individual's life stage.
<bullet> Build on the 2014 changes to the WIC food packages and the
positive impact those had on participant diet quality and reduced
prevalence of obesity among children.6 7 8
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\6\ Pan L, Blanck HM, Park S, Galuska DA, Freedman DS, Potter A,
Petersen R. State-Specific Prevalence of Obesity Among Children Aged
2-4 Years Enrolled in the Special Supplemental Nutrition Program for
Women, Infants, and Children--United States, 2010-2016. MMWR Morb
Mortal Wkly Rep. 2019 Nov 22;68(46):1057-1061. doi: 10.15585/
mmwr.mm6846a3. PMID: 31751324; PMCID: PMC6871901.
\7\ Daepp MIG, Gortmaker SL, Wang YC, Long MW, Kenney EL. WIC
Food Package Changes: Trends in Childhood Obesity Prevalence.
Pediatrics. 2019 May;143(5):e20182841. doi: 10.1542/peds.2018-2841.
Epub 2019 Apr 1. PMID: 30936251; PMCID: PMC6565338.
\8\ Chiasson MA, Findley SE, Sekhobo JP, Scheinmann R, Edmunds
LS, Faly AS, McLeod NJ. Changing WIC changes what children eat.
Obesity (Silver Spring). 2013 Jul;21(7):1423-9. doi: 10.1002/
oby.20295. Epub 2013 May 22. PMID: 23703806.
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II. 2022 Proposed Rule Comment Summary

The 2022 proposed rule to revise regulations governing the WIC food
packages was published in the Federal Register on November 21, 2022 (87
FR 71090), with a 90-day comment period. During this time USDA received
17,731 comments. Sixteen form letter campaigns comprised 15,863
submissions. All comments were considered without regard to whether
they were provided by a single commenter or repeated by many.
Importance was given to the substance or content of the comment, rather
than the number of times a comment was submitted. There were 1,795
unique comments of which 993 were substantive. A total of 73 comments
were either duplicates or not relevant or related to the rule. Comments
that did not refer to the WIC food packages or changes in the proposed
food rule were considered outside of scope for the revisions to the WIC
food packages and are not addressed as part of this final rule. The
comments came from a variety of sources, including WIC State and local
agencies, professional organizations and associations, advocacy groups,
health care professionals, universities, members of Congress, the food
industry, farmers, participants, and private citizens.
USDA worked in collaboration with a data analysis company to code
and analyze the public comments using a commercial web-based software
product and obtained data showing support for or opposition to each
proposed change. Over 12,000 commenters provided broad general support
for revisions to the WIC food packages while approximately 20
commenters provided general comments in opposition to the 2022 proposed
rule. The remaining

[[Page 28491]]

comments discuss specific provisions in the proposed food package rule
and are further detailed and addressed throughout this final rule. The
Final Summary of Public Comments report is available online at
<a href="http://www.regulations.gov">www.regulations.gov</a> in docket FNS-2022-0007. The Final Summary of
Public Comments includes the specific number of comments in support of
or opposition to each provision in the 2022 proposed rule, with a
detailed narrative describing the key points made by commenters. USDA
used the Final Summary of Public Comments and a supplementary review of
individual comments to finalize provisions within this final rule. USDA
refers to the Final Summary of Public Comments for numbers of comments
received on each provision, with general summaries of comments provided
in the preamble of this final rule.
USDA appreciates the many comments expressing support for revisions
to the WIC food packages and urging USDA to implement the science-based
recommendations included in the 2022 proposed rule. USDA agrees the WIC
food packages' benefits have an important role in supporting and
improving the health of infants, children, and women who are at
nutritional risk and, consequently, improving healthcare costs.

III. Discussion of the Final Rule

The following is a discussion of the provisions set forth in the
2022 proposed rule, a summary of the comments received that addressed
these provisions, and the Department's rationale for changes in the
final rule that either modify or retain the proposed revisions.
Provisions not discussed in this preamble did not receive significant
or substantial public comments and are retained in this final rule as
proposed.
This preamble communicates the rationale for modifications to the
2022 proposed rule that are codified in this final rulemaking. The
reasons for the proposed changes were carefully examined in
consideration of comments received to determine their continued
applicability, given the goals for this rulemaking and the foundation
of current nutritional science. Unless otherwise stated in the preamble
of this final rule, the rationales included in the preamble of the 2022
proposed rule are regarded as a basis for the final regulations.
Therefore, a thorough understanding of the rationales for the final
regulations may require reference to the preamble of the 2022 proposed
rule (87 FR 71090).
The following chart provides a summary comparison of the proposed
and final revisions to the WIC food packages.

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Summary of final
Section Summary of proposed revisions based on
revisions public comment
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A. Fruits and Vegetables.... 1. Increase the CVV Finalize as
maximum monthly proposed.
allowances for
child, pregnant,
breastfeeding, and
postpartum
participants.
2. Require WIC State Finalize as
agencies to proposed.
authorize at least
one other form of
fruits and
vegetables in
addition to fresh.
3. Require vendors Finalize as
to stock at least proposed.
three varieties of
vegetables.
4. Expand what can Finalize as
be purchased with proposed.
the CVV.
B. Juice.................... 1. Reduce or remove Reduce juice amounts
the maximum monthly to 64 fluid ounces
allowance for juice. for child and all
2. Allow CVV as a adult participants.
substitute for Finalize as
juice. proposed.
C. Milk and Milk 1. Reduce maximum Finalize as
Substitutions. monthly allowances proposed.
of milk.
2. Require Finalize as
authorization of proposed.
lactose-free milk.
3. (a) Permit only 3a. Finalize as
unflavored milk, proposed.
including lactose- 3b. Establish an
free milk, and (b) added sugars limit
reduce total sugars for yogurt and
allowed in yogurt plant-based milk
and plant-based alternatives.
milk substitutions.
4. Add a (a) calcium 4a. Add a minimum
specification for calcium
tofu [200 specification of
milligrams per 100 100 milligrams per
grams of tofu] and 100 grams of tofu.
(b) vitamin D 4b. Add a minimum
specification for vitamin D
yogurt [100 specification of
international units 106 IU (2.67
(IU) (2.5 micrograms) per 8
micrograms) per 8 oz (1 cup) of
ounces of yogurt]. yogurt and extend
the implementation
timeline.
5. Increase yogurt Finalize as
substitution proposed.
amounts for milk.
6. Add soy-based Allow plant-based
yogurts and soy- yogurts and plant-
based cheeses as based cheeses.
substitution
options for milk.
7. Update the FDA Finalize as
standard of proposed.
identity citations
for yogurt.
8. Allow reduced-fat Finalize as
yogurts for 1-year- proposed.
old children
without
restrictions.
9. Remove cheese as Finalize as
a food category proposed.
from the fully
breastfeeding food
package.
D. Infant Foods............. 1. Reduce infant Finalize as
cereal, infant proposed.
fruits and
vegetables, and
infant meat.
2. Increase CVV Finalize as
substitution proposed.
amounts for infant
fruits and
vegetables, allow
forms other than
fresh, and lower
the minimum age for
infants to receive
a CVV.
3. Prohibit added No change to current
fats in infant provision.
foods.
E. Add Infant Formula 1. Increase formula Finalize as proposed
Flexibilities and Create a amounts in the
Separate Food Package for first month for
Partially (Mostly) partially (mostly)
Breastfeeding Participants. breastfed infants.
2. Allow all Finalize as
prescribed infant proposed.
formula quantities
to be considered
``up to'' amounts.
3. Create a separate Finalize as
and enhanced food proposed.
package for
partially (mostly)
breastfeeding
participants.
F. Breakfast Cereals........ 1. Change whole Finalize as
grain criteria for proposed.
breakfast cereals.
2. Require all Require 75 percent
breakfast cereals of breakfast
meet whole grain cereals meet whole
criteria. grain criteria
Replace the total
sugars limit for
breakfast cereal
with an added
sugars limit of
<=21.2 g per 100
grams dry cereal
(<=6 grams per dry
ounce)

[[Page 28492]]

G. Whole Wheat Bread, Whole 1. Revise (reduce Finalize as
Grain Bread, and Whole for children and proposed.
Grain Options. increase for
pregnant,
postpartum, and
breastfeeding
participants) MMA
for whole wheat and
whole grain bread
and other whole
grain options.
2. Change criteria Finalize as
for whole grain proposed.
breads.
3. Expand whole Add proposed whole
grain options. grain options and
allow for
additional whole
grain options that
meet
specifications.
H. Canned Fish.............. 1. Add canned fish Add canned fish to
to food packages food packages for
for children (2 children (1 through
through 4 years) 4 years) and allow
and specify canned light tuna
varieties. and chub mackerel
for children
2. Add canned fish Finalize as
to food packages proposed.
for pregnant,
partially (mostly)
breastfeeding, and
postpartum
participants not
currently receiving
canned fish, revise
amounts for fully
breastfeeding
participants, and
revise WIC-eligible
varieties.
I. Legumes and Eggs......... 1. Require WIC State Finalize as
agencies to proposed.
authorize both
dried and canned
legumes.
2. Require Finalize as
authorization of proposed.
legumes and peanut
butter as
substitutes for
eggs and allow WIC
State agencies to
choose to authorize
tofu to substitute
for eggs.
3. Requested comment Implement a
on nut and seed provision to allow
butters. WIC State agencies
the option to
authorize nut and
seed butters as a
substitute for
peanut butter.
J. Maximum Monthly 1. Allow WIC State Finalize as
Allowances. agencies to proposed.
authorize a greater
variety of package
sizes to increase
variety and choice,
while still
providing
participants with
package sizes that
ensure they can
receive the full
benefit amount
(i.e., at least one
package size, or a
combination of
sizes, must add up
to the full MMA).
------------------------------------------------------------------------

A. Fruits and Vegetables

The final rule increases the CVV amounts for child, pregnant,
postpartum, and breastfeeding participants; requires the authorization
of an additional form of fruits and vegetables beyond fresh, dependent
on participant category; requires vendors to stock at least three
varieties of vegetables; and expands what foods can be purchased with
the CVV.
1. Increase CVV Maximum Monthly Allowances for Child, Pregnant,
Breastfeeding, and Postpartum Participants (Sec. 246.10(e)(10) and
(11), Tables 2 and 3) \9\
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\9\ The change in terminology from ``CVV'' to cash-value
benefit, or ``CVB,'' is not included in this final rule; however,
USDA proposed this change in the rule titled: ``Special Supplemental
Nutrition Program for Women, Infants, and Children (WIC): Online
Ordering and Transactions and Food Delivery Revisions to Meet the
Needs of a Modern, Data-Driven Program'' (88 FR 11516). The proposal
would update the definition of cash-value voucher to remove the
clause, ``cash-value voucher is also known as cash-value benefit, or
CVB, in an EBT environment,'' and create an independent definition
of CVB as a type of electronic benefit that is a fixed-dollar amount
used to obtain authorized fruits and vegetables.
---------------------------------------------------------------------------

This final rule codifies the increase in the CVV amounts for child,
pregnant, breastfeeding, and postpartum participants as summarized in
the 2022 proposed rule. The increase to the CVV is consistent with the
temporary increase in the CVV that has been in place since October 1,
2021, as a result of appropriations legislation (the Agriculture, Rural
Development, Food and Drug Administration, and Related Agencies
Appropriations Act, 2022, Pub. L. 117-103; the Consolidated
Appropriations Act, 2023, Pub. L. 117-328; and the Consolidated
Appropriations Act, 2024, Pub. L. 118-42).
Commenters expressed broad support for the increase to the CVV
amounts of $24 for child participants, $43 for pregnant and postpartum
participants, and $47 for partially (mostly) and fully breastfeeding
participants adjusted annually for inflation. In expressions of
support, commenters cited that the increased CVV amounts: (1) allow
participants to buy and consume more fruits and vegetables to support
improved health; (2) have led to greater participant satisfaction and
retention; (3) support retailers in low-income and rural areas stocking
more fruits and vegetables because of the increased buying power,
improving choice and access; and (4) support the economy, particularly
produce farmers.
No comments opposed the increase in CVV amounts. Some commenters
requested adjusting the value of the CVV for WIC State agencies
administering WIC in high-cost areas, citing reduced purchasing power
because of the likelihood of relatively higher food prices. Given that
NASEM recommended further study to evaluate the feasibility of making
such adjustments to the CVV, the Department is not making this change
in the final rule and instead seeks to pursue future cross-program
research to obtain data necessary to better understand variations in
cost of living to inform potential future changes.
Some commenters suggested increasing CVV amounts beyond those
proposed, with several requests for USDA to increase the amount for
pregnant participants to match that of breastfeeding participants at
$47. The CVV amounts in the 2022 proposed rule provide approximately
half of the recommended daily amounts of fruits and vegetables for
adults and children, which aligns with the goal of providing
supplemental amounts of foods and nutrients in the WIC food packages.
These increased CVV amounts are consistent with the DGA recommendation
to increase consumption of fruits and vegetables and afford
participants greater choice to select fruits and vegetables that
accommodate their cultural and personal food preferences. For these
reasons, the Department maintains the amounts as proposed. The
following are the CVV amounts (using 2022 as the base year) \10\ for
the purchase of fruits

[[Page 28493]]

and vegetables by participant category (monthly CVV amounts will be
adjusted annually for inflation):
---------------------------------------------------------------------------

\10\ The base year used for calculating inflation adjustments
will be 2022. Note that the temporary increase in the CVV for fiscal
year 2023 was based on the proposed amounts (2022 base year amounts)
and adjusted upward for inflation to provide $25 for child
participants, $44 for pregnant and postpartum participants, and $49
for partially (mostly) and fully breastfeeding participants. The
inflation adjustment made for FY 2023 was consistent with the
approach required under 7 CFR 246.16(j)(4). Similarly, the temporary
increase in the CVV for fiscal year 2024 is based on the proposed
amounts (2022 base year amounts) and adjusted upward for inflation
to provide $26 for child participants, $47 for pregnant and
postpartum participants, and $52 for partially (mostly) and fully
breastfeeding participants. The inflation adjustment made for FY
2024 is consistent with the approach required under 7 CFR
246.16(j)(4). See WIC Policy Memo #2023-2: Consolidated
Appropriations Act, 2023, Extending the Temporary Increase in the
Cash-Value Voucher/Benefit for Fruit and Vegetable Purchases,
<a href="http://www.fns.usda.gov/wic/policy-memorandum-2023-2">www.fns.usda.gov/wic/policy-memorandum-2023-2</a> and WIC Policy
Memorandum #2024-1: FY 2024 Cash-Value Voucher Benefit Amounts.
<a href="http://www.fns.usda.gov/wic/2024cash-value-voucher-benefit-amounts">www.fns.usda.gov/wic/2024cash-value-voucher-benefit-amounts</a>.
---------------------------------------------------------------------------

Children 1 through 4 years: $24.
Pregnant: $43.
Postpartum: $43.
Partially (mostly) breastfeeding: $47.
Fully breastfeeding: $47.
2. Require One Other Form of Fruits and Vegetables in Addition to Fresh
(Sec. 246.10(e)(3)(v), (e)(4)(ii), (e)(5)(ii), (e)(6)(ii), (e)(7)(ii),
and (e)(9) Through (11), Tables 1 Through 3)
This final rule codifies the requirement that WIC State agencies
authorize fresh and at least one other form (frozen, canned, and/or
dried) of both fruits and vegetables for the child, pregnant,
postpartum, and breastfeeding food packages and requires fresh and at
least one other form (frozen or canned) for the CVV substitution for
infant (ages 6 through 11 months) food packages. Dried fruits and
vegetables pose a choking hazard for infants and are not authorized.
Most commenters expressed support for requiring another form of
fruits and vegetables in addition to fresh. Many WIC State agencies
commented that they already allow for an additional form so there is no
burden to implementing this provision. Commenters also highlighted that
the provision would support the purchase of produce with a longer shelf
life and expand participant choice, which could lead to increased
redemption rates and mitigate food waste. The Department agrees with
these comments and adds that in combination with the increase in the
CVV, the provision will provide participants with greater flexibility
to accommodate various storage or cooking conditions as well as special
dietary needs (e.g., allergy/intolerance to certain forms of fruits and
vegetables) and cultural and personal preferences.
Some WIC State agencies requested clarification regarding frozen,
canned, and dried options as well as pickled or fermented products and
sugar in additional forms of fruits and vegetables. Several commenters
expressed support for additional forms of fruits and vegetables with
concern about the sodium, sugar, and additives in canned and frozen
products. The Department clarifies that with this provision, canned or
frozen fruit may not contain added sugars, fats, oils, or salt and,
that canned or frozen vegetables may not contain added sugars, fats, or
oils (Sec. 246.10(e)(12), Table 4). Regarding sodium, the Department
acknowledges the sodium content of canned vegetables may be higher than
other forms (i.e., fresh, frozen, and dried), and that canned
vegetables can be prepared in ways that reduce sodium content. The
Department also clarifies that while sodium is not restricted in canned
or frozen vegetables in Federal regulations, WIC State agencies may
establish criteria in addition to the Federal minimum requirements.
The Department recognizes the potential for confusion among
households with infant participants whose benefits are aggregated \11\
with children and women participants who may receive dried forms of
fruits and vegetables and confirms that WIC State agencies should
address this topic through nutrition education.
---------------------------------------------------------------------------

\11\ Aggregation of WIC benefits: WIC State agencies may
aggregate WIC supplemental food amounts for families or households
with multiple participants receiving the same food with the same
nutrient specification. This may be useful when benefits are issued
via EBT.
---------------------------------------------------------------------------

3. Require Vendors To Stock at Least Three Varieties of Vegetables
(Sec. 246.12(g)(3)(i))
This final rule codifies the provision to require vendors to stock
at least three varieties of vegetables as summarized in the proposed
rule.
Most commenters, including WIC State and local agencies, expressed
support for this provision. Several suggested the requirement would not
create additional burden as most retailers already stock more than two
varieties of vegetables, noting this provision could reduce barriers
and increase equitable access to vegetables. The Department agrees with
these commenters and adds that increasing the minimum number of
vegetables stocked will help reduce disparities in food access in
communities where obtaining produce is difficult and provide
participants with greater access to support establishing healthy
dietary patterns during critical life stages.
Several commenters expressed concern that this provision could
result in a potential loss of small vendors, and a few WIC State
agencies cited the administrative burden of requiring additional
varieties of vegetables. The Department recognizes that the requirement
for vendors to stock at least three varieties of vegetables could
potentially impact some small vendors. The ability to stock shelf
stable forms of vegetables will ease this concern, as Federal
regulations will not require small vendors to stock three forms of
fresh vegetables. As suggested in several comments, the Department will
develop resources and technical assistance for WIC State agencies to
adapt and use in training WIC-authorized vendors on the new provisions
and allowable flexibilities in this final rule.
4. Expand What Can Be Purchased With the CVV (Sec. 246.10(e)(12),
Table 4)
This final rule expands what can be purchased with the CVV,
including fresh cut herbs, white potatoes, and larger sizes of packaged
fruits and vegetables.
a. Allow Fresh Herbs (Sec. 246.10(e)(12), Table 4)
This final rule codifies allowing participants to purchase fresh
cut herbs with the CVV as summarized in the 2022 proposed rule.
Allowing fresh cut herbs to be purchased with the CVV increases
participant choice, helps accommodate cultural eating patterns, and
aligns with the DGA, which categorizes fresh herbs (e.g., cilantro and
basil) as dark green vegetables.
The few comments received specific to this proposal were
supportive, with WIC State agencies noting that herbs can have health
benefits by increasing flavor and decreasing the salt and sugar added
during cooking. Commenters cited the potential of including fresh herbs
to better meet recommended daily food group amounts for fruits and
vegetables. The Department agrees with comments acknowledging that
herbs can help enhance the flavor of foods as a strategy to reduce
added sugars, saturated fat, and sodium in support of healthy dietary
patterns.
Several commenters asked for clarification on this provision,
specifically what is included as a fresh herb and whether dried herbs
could also be considered in this provision. The Department agrees that
clarification on the types of allowable herbs is important. The intent
of this provision is to allow participants to purchase fresh herbs, cut
at the root or with the root intact, that are in a consumable form. For
consistency with the WIC Farmers' Market Nutrition Program and the DGA,
the Department will not allow dried herbs to be purchased with the CVV.
The Department will further address this through technical

[[Page 28494]]

assistance, such as guidance or training depending on need.
b. Codify That White Potatoes Are WIC Eligible (Sec. 246.10(e)(12),
Table 4)
This final rule permanently removes white potatoes as an excluded
vegetable, as summarized in the 2022 proposed rule. Doing so codifies
the provision in the Consolidated and Further Continuing Appropriations
Act, 2015 (Pub. L. 113-235) that precludes the exclusion or restriction
of any variety of fresh, whole, or cut vegetables (except vegetables
with added sugars, fats, or oils) in WIC. FNS issued WIC Policy
Memorandum #2015-3: Eligibility of White Potatoes for Purchase with the
Cash-Value Voucher, which has allowed for the purchase of white
potatoes with the CVV through present day. No comments opposed to this
provision were provided.
c. Allow Larger Sizes of Packaged Fresh Fruits and Vegetables (Sec.
246.10(e)(12), Table 4)
This final rule codifies allowing larger package sizes of fresh
fruits and vegetables to be WIC-eligible as summarized in the 2022
proposed rule. Prior to this rulemaking, regulations prohibited larger
package sizes of fresh cut produce, referred to as ``party trays.'' In
accordance with current nutrient requirements, packages of fresh fruits
and vegetables regardless of size may not contain added sugars, fats,
or oils (which may appear in the form of dips, sauces, or glazes). The
change will also allow participants with more than one family member
participating in WIC to use aggregate benefits to purchase larger
amounts of precut fruits and vegetables.
The Department received broad general support for this provision,
with commenters noting the added flexibility of larger package sizes
will better serve participants and support consumption of a variety of
fruits and vegetables. WIC State agencies noted party trays commonly
contain dips or sauces, which are not WIC-eligible and may cause
confusion among participants, and that party trays are typically less
cost effective and have a greater risk of food spoilage if not consumed
quickly. The Department acknowledges these concerns, will continue to
provide technical assistance to WIC State agencies to assist in
implementing the provisions of this final rule, and encourages WIC
State agencies to address package size considerations to minimize food
spoilage through nutrition education.

B. Juice

This final rule codifies a reduction in juice from 128 to 64 ounces
in the child food package and from 144 to 64 ounces in the pregnant and
breastfeeding food package as proposed, and a reduction in juice from
96 ounces to 64 ounces in the postpartum food package, which modifies
the proposed provision to eliminate juice. In addition, this rule
allows substitution of a $3 CVV for the full juice amount across all
food packages as originally proposed.
1. Reduce Maximum Monthly Allowance for Juice (Sec. 246.10(e)(10) and
(11), Tables 2 and 3)
This final rule codifies the reduction of juice from:
<bullet> 128 ounces to 64 ounces in the child food package, as
proposed,
<bullet> 144 ounces to 64 ounces in the pregnant and breastfeeding
food packages, as proposed, and
<bullet> 96 ounces to 64 ounces in the postpartum food package.
Based on public comment, the Department modified its proposal to
eliminate juice in the postpartum food package.
Many commenters, including WIC State agencies, expressed support
for the reduction in juice with several suggesting the Department
eliminate juice from all WIC food packages. Commenters cited
overconsumption, particularly among young children, as reason to reduce
or eliminate juice, noting the lack of dietary fiber that may
contribute to excess caloric intake. The Department agrees with the
importance of limiting juice consumption as part of a healthy dietary
pattern and notes the reduced quantities provide more appropriate
supplemental amounts at approximately 27 to 53 percent of DGA-
recommended limits for juice for most participants compared to 40 to
107 percent previous WIC food packages provided.\12\ The DGA emphasizes
the consumption of whole forms of fruits and vegetables over juice.
While the DGA includes 100 percent juice as part of the fruit and
vegetable food groups, it emphasizes whole fruit and a variety of
vegetables from all subgroups, and places limits on the amount of juice
that contributes to a healthy dietary pattern. Juice is not a separate
food subgroup (like dark-green vegetables) in the DGA recommended
dietary patterns. Additionally, the DGA recognizes juice as lower in
dietary fiber than whole fruits or vegetables. The DGA identifies
dietary fiber as a dietary component of public health concern for the
U.S. population due to underconsumption, and these low intakes are
associated with health concerns.
---------------------------------------------------------------------------

\12\ For children ages 12 to 23 months, the reduced juice
quantity provides 53 percent of the upper DGA limit based on 4
ounces/day for 700-1000 kcal. For children 2 to 4 years, the reduced
juice quantity provides 36-53 percent of the upper DGA limit based
on 4-6 ounces/day for 1000-1600 kcals. For all pregnant and
breastfeeding food packages, the reduced juice quantity provides 27
percent of the upper DGA limit based on 8 ounces/day for 2000-2400
kcals.
---------------------------------------------------------------------------

Comments in opposition cited juice as a convenient and cost-
effective source of fruit, an under consumed food group among the WIC-
eligible population. Some commenters expressed general concern with the
reduced benefit level, believing this disincentivizes participation and
may impede participant retention goals. Several commenters requested
the Department reconsider eliminating juice from the postpartum food
package, noting the benefits of juice are applicable to the entire WIC-
eligible population and the elimination is not aligned with the
Department's goal of improving equitable access to supplemental foods.
The Department agrees that juice, specifically 100 percent juice
which the WIC food packages provide, is a convenient and cost-effective
source of nutrients, particularly vitamin C. However, the Department
also acknowledges that juice is lower in dietary fiber--a dietary
component of public health concern--than whole fruits and vegetables,
and that juice in the current WIC food packages provides a
disproportionate amount of fruit and vegetable servings compared to
servings from whole forms. The Department believes the overall improved
variety, flexibility, and choice afforded through the WIC food packages
will appeal to participants while also providing foods in appropriate
supplemental amounts.
The Department appreciates comments citing the benefits of juice
across life stages, including for postpartum individuals, and agrees
with the importance of ensuring equitable access to nutrient-dense
foods for all participant categories. Further, the Department
acknowledges the recommended amounts of fruits and vegetables in the
2020-2025 DGA are equivalent across life stages; specifically, the DGA
recommends 2 and 2.5 to 3 cup equivalents per day of fruits and
vegetables, respectively, for pregnant, breastfeeding, and postpartum
individuals. The provision of 64 fluid ounce provides approximately 27
percent of the upper limit of juice in the recommended fruit and
vegetable category of the DGA for postpartum women, which aligns with
the supplemental amounts provided for all pregnant and breastfeeding
participant categories.

[[Page 28495]]

2. Allow CVV as a Substitute for Juice (Sec. 246.10(e)(10) and (11),
Tables 2 and 3)
This final rule codifies the provision allowing participants to
substitute a $3 CVV for the full juice amount (64 fluid ounces) through
individual tailoring during benefits issuance, as summarized in the
2022 proposed rule. The dollar value of the CVV substitution for juice
will be adjusted annually for inflation, consistent with fruit and
vegetable CVV adjustments in Sec. 246.16.
Most commenters expressed support for the CVV substitution option,
citing the importance of participant choice and the benefits of whole
fruits and vegetables in comparison to juice, namely dietary fiber.
Commenters further suggested increasing the dollar amount of the CVV
substitution to $4 or more, believing this higher amount to be
reflective of the market value for juice, and that as a Federal
requirement or WIC State agency option the CVV be the default with
juice as the substitution upon participant request. The Department
agrees with the importance of participant choice and clarifies that (a)
WIC State agencies have the option to make the $3 CVV the default with
juice substituted upon request and (b) the dollar value of the CVV
substitution will be evaluated and adjusted annually for inflation to
ensure it keeps pace with the market value of juice.
Comments in opposition noted substituting 64 ounces of juice with a
$3 CVV results in fewer net servings of fruits and vegetables as whole
forms of fruits and vegetables typically cost more than juice, with one
suggestion to also allow substituting additional juice for the CVV. The
Department notes that while juice in nutrient-dense forms can be
included in healthy dietary patterns, the 2020-2025 DGA emphasizes
fruits and vegetables in whole forms and sets limits on the amount of
juice consumption. As noted above, juice in the current WIC food
packages provides a disproportionate amount of fruit and vegetable
servings compared to servings from whole forms. Further, the option to
substitute a $3 CVV for the full juice amount (64 fluid ounces),
supports the Department's goals of providing greater flexibility,
variety, and choice to accommodate special dietary needs, cultural
practices, and personal preferences.

C. Milk and Milk Substitutions

This final rule revises milk and milk substitutions as proposed
with some modifications based on public comments and in consideration
of providing greater flexibility, variety, and choice to WIC State
agencies and participants. The changes include:
Reduce milk amounts provided in child, pregnant, and breastfeeding
food packages.
Permit only unflavored milk and establish an added sugar limit for
yogurts and plant-based milk alternatives.
<bullet> Allow plant-based \13\ substitution options for milk.
---------------------------------------------------------------------------

\13\ To reflect the addition of plant-based milk alternatives to
the currently allowed soy-based beverage as a WIC-eligible, the
preamble refers to ``plant-based milk alternatives,'' a term
consistent with that the FDA uses in their draft labeling
recommendations and inclusive of soy-based beverage.
---------------------------------------------------------------------------

<bullet> Add a calcium specification for tofu and a vitamin D
specification for yogurts.
<bullet> Allow reduced-fat yogurts for 1 year-old children without
restrictions.
<bullet> Remove cheese as a separate food category from the fully
breastfeeding food package.
<bullet> Require authorization of unflavored lactose-free milk.
<bullet> Increase yogurt substitution amounts.
<bullet> Remove the limitation that no more than a total of 4
quarts of milk (for participants in Food Packages IV-VI) or 6 quarts of
milk (for participants in Food Package VII) may be substituted for a
combination of cheese, yogurt, or tofu.
<bullet> Create separate food packages for children 12 through 23
months and children 2 through 4 years.
<bullet> Update the FDA standards of identity citations for yogurt.
1. Reduce Maximum Monthly Allowances of Milk (Sec. 246.1(e)(10) and
(11), Tables 2 and 3)
As NASEM recommended, this final rule codifies the proposed
reduction in milk amounts from:

<bullet> 16 quarts to 12 quarts for children ages 12 to 23 months
in the child food package
<bullet> 16 quarts to 14 quarts for children ages 2 through 4 years
in the child food package,
<bullet> 22 quarts to 16 quarts in the pregnant and partially
breastfeeding food packages, and
<bullet> 24 quarts to 16 quarts in the fully breastfeeding package.

These changes provide appropriate supplemental quantities and
improve the balance of foods in the food packages.
The provision to reduce milk amounts received mixed support. Many
commenters, including several WIC State and local agencies, expressed
support for the reduced milk amounts, with the primary rationales that
participants report receiving too much milk, the changes are consistent
with the supplemental nature of WIC even after the reductions to the
dairy amounts, and the WIC food packages still provide most of the
recommended dairy amounts. Some commenters also suggested alternatives
to the provision as proposed, including retaining current amounts or
reducing amounts to a lesser degree for various participant categories.
However, there were also many commenters, including a few WIC State
agencies, who opposed the reduced amounts. Comments in opposition
stated that dairy provides important nutrients and should not be
reduced in a program that serves at-risk participants; dairy foods are
some of the most highly redeemed products in the WIC food packages and
a reduction would be noticeable and impact WIC participants and
retailers; reducing milk amounts conflicts with the DGA and runs
counter to WIC's nutrition focus; and that the change, which is not
needed as a cost-savings measure, will lead to participants increasing
their consumption of less nutritious beverages, and will reduce
participation in WIC. The Department also acknowledges, while legally
non-binding, the report language from the Agriculture, Rural
Development, Food and Drug Administration and Related Agencies
Appropriations Act (Pub. L. 118-42) requests that the Secretary not
reduce the maximum monthly allowance with respect to milk when
submitting this final rule.
The Department agrees that milk provides important nutrients, and
WIC continues to support access to dairy products while rebalancing the
foods and beverages currently provided in quantities that exceed
recommended amounts. The current DGA recommends consuming amounts of
foods to meet nutrient needs while not exceeding calorie requirements.
The recommended amounts of dairy range from 1.66 to 3.00 cups per day
across life stages. At current levels, the WIC food packages provide up
to 128 percent of these amounts from milk alone. Recognizing the
inconsistency with WIC's supplemental intent, NASEM recommended
reducing the milk amounts to provide a more balanced supplement to
participants' diets. Ultimately, the reduced milk quantities reflect
NASEM's recommendations and will provide 71 to 96 percent of the dairy
amounts the DGA recommends; help to rebalance the food packages to
better align with DGA dietary patterns; and are more consistent with
the

[[Page 28496]]

supplemental nature of WIC. The reduced quantities for children are
also comparable to the amounts in the Child and Adult Care Food Program
(CACFP) nutrition standards.\14\ Further, the Department believes the
comprehensive set of changes made in this final rule align with
nutrition science and consumer preferences and will result in more
participants fully redeeming their food benefits.
---------------------------------------------------------------------------

\14\ Child Nutrition Programs: Revisions to Meal Patterns
Consistent with the 2020 Dietary Guidelines for Americans (FNS-2022-
0043) (<a href="https://www.regulations.gov/document/FNS-2022-0043-0001">https://www.regulations.gov/document/FNS-2022-0043-0001</a>).
---------------------------------------------------------------------------

Regarding the concern that reduced milk quantities will
disincentivize program participation, the Department believes that
through flexibilities and additions made in this final rule, such as
increasing the CVV, adding canned fish to more WIC food packages, and
adding additional juice, dairy, and whole grain substitution
flexibilities and food options to accommodate special dietary needs,
cultural practices, and personal preferences, participants will
continue to see the WIC food packages as a valuable benefit.
2. Permit Only Unflavored Milk and Establish an Added Sugar Limit for
Yogurts and Plant-Based Milk Alternatives (Sec. 246.10(e)(12), Table
4)
This final rule permits only unflavored milk and establishes an
added sugar limit for yogurts and plant-based milk alternatives.
a. Permit Only Unflavored Milk
This final rule codifies the provision to allow only unflavored
milk as summarized in the 2022 proposed rule.
This provision received broad support, with commenters, including
several WIC State agencies, stating that only a small number of WIC
State agencies currently authorize flavored milk. The Department will
provide targeted technical assistance to WIC State agencies currently
authorizing flavored milk to support successful implementation of this
change. Commenters in support of this provision also cited alignment
with the DGA recommendation that nutrient-dense beverages include
little to no added sugars. Commenters who opposed no longer allowing
flavored milk, including a few WIC State agencies, stated that
participants would not drink unflavored milk and that a healthy dietary
pattern can include some added sugars, which would allow for added
sugars in dairy. The Department clarifies the 2020-2025 DGA includes a
limit on added sugars of less than 10 percent of calories per day and
that nutrient-dense beverages include little, if any, sweeteners. The
DGA further recommends that children 12 through 23 months of age avoid
added sugars because their nutrient requirements are high relative to
the amount of food consumed, providing virtually no room in their diets
for added sugars. The Department clarifies that this provision also
applies to lactose-free milk.
b. Establish an Added Sugars Limit for Yogurts and Plant-Based Milk
Alternatives
This final rule replaces the current total sugars limits with an
added sugars limit and codifies the following provisions for reducing
sugars in yogurts and plant-based milk alternatives based on public
comment as requested in the 2022 proposed rule:
<bullet> Plain or flavored yogurts (dairy and plant-based) must
contain <=16 grams of added sugars per 8 ounces (see Vitamin D
Fortification of Yogurts for vitamin D requirement).
<bullet> Plant-based milk alternatives must contain <=10 grams of
added sugars per 8 fluid ounces (see Plant-Based Milk Alternatives for
other nutrient requirements).
To maintain consistency across food categories that currently have
total sugar limits, this final rule also codifies an added sugars limit
for breakfast cereal (see section F. Breakfast Cereals).
The Department acknowledges the 2022 proposed rule requested
comment on an added sugars limit for yogurt and soy-based beverages. As
discussed below (see Allow Plant-Based Alternatives that Meet Nutrient
Specifications), the Department is codifying changes to allow plant-
based milk alternatives that meet the nutrient specifications for WIC-
eligible soy beverages. Therefore, the Department considered comments
regarding added sugars in soy-based beverages to apply to this broader
category of plant-based milk alternatives, summarized below.
Commenters in support of using an added versus total sugars limit
in yogurt and plant-based milk alternatives, including several WIC
State agencies, highlighted that added sugars are not equivalent to
natural sugars found in lactose or fruit, an added sugar limit is more
consistent with DGA recommendations, and added sugars information is
available on the Nutrition Facts label under FDA requirements. The
Department agrees with the commenters and notes that using an added
sugars limit instead of a total sugars limit increases consistency with
proposed limits for Federally administered Child Nutrition Programs,
which is of value to USDA and those who participate in such programs.
At the time NASEM developed their WIC food packages recommendations,
FDA's regulation to include added sugars on food labels was not yet
implemented. Given the DGA recommendations on limiting added sugar, and
that the FDA's labeling requirement for added sugars are in effect,
this final rule includes an added sugar limit for yogurt and plant-
based milk alternatives (as well as for breakfast cereal, see section
F).
Comments in opposition stated that specific to yogurt, the varied
fat levels of yogurts result in differing amounts of naturally
occurring sugar from lactose. These commenters suggested the added
sugars limits NASEM provided in Table 6.5 (page 303) of their 2017
report would be complex and create an administrative burden. Commenters
further highlighted the lack of naturally occurring sugar in plant-
based yogurts, noting these products require additional added sugars
for palatability, and expressed concern regarding any proposed limit
for total or added sugars. The Department agrees there would be
substantial administrative burden associated with added sugars limits
that differ based on the fat content of yogurt. The added sugars limit
of <=16 grams per 8 ounces of yogurt aligns with NASEM's suggested
limits, which ranged from 11-18 grams of added sugars per 8 ounces
depending on fat content, while easing administrative burden and
aligning with proposed limits for Federally administered Child
Nutrition Programs. The Department believes that a limit on the
allowable added sugars content in plant-based yogurts is important for
consistency with current dietary guidance and to support healthy
dietary patterns.
3. Allow Plant-Based Alternatives That Meet Nutrient Specifications as
Milk Substitution Options (Sec. 246.10(e)(10) Through (12), Tables 2
Through 4)
This final rule adds plant-based milk alternatives, yogurts, and
cheeses as milk substitution options.
a. Plant-Based Milk Alternatives
This final rule codifies allowing plant-based milk alternatives
that meet the nutrient specification for WIC-eligible soy beverages in
current WIC regulations (Sec. 246.10(e)(12), Table 4) as summarized in
the 2022 proposed rule, with the addition of an added sugar limit
codified in this final rule (see Establish an Added Sugars Limit for
Yogurts and Plant-Based Milk Alternatives, above).
This final rule also codifies a technical correction to 7 CFR
246.10(e)(10) through (12) to reflect the

[[Page 28497]]

addition of plant-based milk alternatives to the currently allowed soy-
based beverage as a WIC-eligible food by replacing ``soy-based
beverage'' with ``plant-based milk alternatives,'' a term consistent
with FDA draft labeling recommendations \15\ for these products.
Additionally, the Department is clarifying that the current WIC State
agency option to authorize plain or flavored (e.g., vanilla, chocolate,
etc.) soy-based beverage will apply to all plant-based milk
alternatives, and such products will be required to meet added sugar
requirements. The Department is also clarifying that Federal
regulations will not require or allow for medical documentation to
issue plant-based milk alternatives or other milk substitution options.
Among the goals of this final rule are to accommodate special dietary
needs and cultural and personal preferences and to provide more
equitable access to the supplemental foods WIC provides. Requiring
medical documentation to issue foods outside of Food Package III
creates an unnecessary burden on participants and inequitable access if
WIC State agencies' policies differ in how participants can obtain a
milk substitution. Therefore, WIC State agencies that require medical
documentation to provide a milk substitution option may no longer do
so; rather, WIC State agencies must issue milk substitutions to
participants when individually tailoring WIC food packages to
accommodate special dietary needs and cultural and personal
preferences.
---------------------------------------------------------------------------

\15\ FDA Provides Draft Labeling Recommendations for Plant-based
Milk Alternatives to Inform Consumers (https://www.fda.gov/news-
events/press-announcements/fda-provides-draft-labeling-
recommendations-plant-based-milk-alternatives-inform-
consumers#:~:text=The%20draft%20guidance%2C%20%E2%80%9CLabeling%20of%
20Plant-
based%20Milk%20Alternatives,and%20Nutrition%20Service%20fluid%20milk%
20substitutes%20nutrient%20criteria).
---------------------------------------------------------------------------

Most commenters, including WIC State agencies, supported offering
other plant-based milk alternatives that meet nutrient specifications
and discussed that many children who are allergic to milk are also
allergic to soy, and so providing other plant-based milk alternatives
provides a healthy beverage option for these participants. Commenters
also discussed that providing additional plant-based milk alternatives
provides more options for those with cultural preferences for non-dairy
milks and urged the Department to allow a variety of plant-based milks
beyond soy. Some commenters, including WIC State agencies, noted the
limited availability of products that meet the current nutrient
specifications and expressed concern for the relatively high cost of
plant-based milks. The Department recognizes the limited availability
of products that currently meet nutrient specifications and, given that
dairy and soy are among the most common food allergens, is creating a
pathway to allow WIC Stage agencies to authorize such products as they
become available rather than waiting for a future rulemaking. Such a
pathway provides WIC State agencies with greater flexibility to
prescribe and tailor WIC food packages that accommodate participants'
special dietary needs and personal and cultural food preferences, thus
increasing equity. Additionally, USDA understands the cost concerns
that some WIC State agencies expressed, and while the Department
encourages WIC State agencies to offer as much flexibility, variety,
and choice as possible for their participants, USDA also reminds WIC
State agencies that they are not required to authorize all WIC-eligible
foods. When deciding which types and brands of WIC foods to authorize,
including when authorizing plant-based milk alternatives, WIC State
agencies should consider factors such as package size, food prices,
product availability across their jurisdiction, and program management
costs along with participant preference and demand.
Some commenters also expressed a concern about the unit of measure
since some products are available in 48-ounce containers. The current
substitution ratio for soy-based beverages--an equal quart for quart
substitution--will apply to plant-based milk alternatives, as will the
ability for participants to substitute these products for the full milk
allotment. Since milk and plant-based milk alternatives provide
critical nutrients such as calcium and vitamin D, it is important that
WIC participants have a way to redeem their full food benefit. For all
foods authorized, WIC State agencies must authorize container sizes
that equal or add up to the full MMA. However, this final rule also
gives WIC State agencies the option to also authorize container sizes
that may not equal or add up to the full MMA (see section J. Maximum
Monthly Allowance (MMA)).
While the Department received broad support for this provision,
several commenters expressed mixed views on the nutrient specifications
for, or current nutrient content of, plant-based milk alternatives. One
WIC State agency and one local WIC agency supported allowing plant-
based milk alternatives but opposed the nutrient requirements, citing
variety and flexibility as more important than matching the nutrient
content of dairy milk. In contrast, some commenters expressed concern
about the lack of equivalency in the nutrient content of plant-based
milk alternatives relative to WIC-eligible dairy products, noting the
important nutrients dairy-based products provide and citing the AAP,
the AND, the American Academy of Pediatric Dentistry (AAPD), and the
American Heart Association (AHA) as not recommending plant-based milk
alternatives. A couple of commenters opposing this provision asserted
the proposed authorization of lactose-free milk and flexibilities for
substituting yogurt and cheese will ensure dairy's nutrients and health
benefits are accessible to all WIC participants without a need to
authorize plant-based milk alternatives.
USDA agrees cow's milk provides important nutrients, including
calcium, vitamin D, and potassium--defined as nutrients of public
health concern in the 2020-2025 DGA. As such, based on recommendations
from NASEM, FNS proposed in 2006, implemented in 2007, and finalized in
2014 a provision to allow soy-based beverage that was fortified to
contain nutrients in amounts similar to cow's milk. This was to ensure
participants who substitute soy-based beverage for milk consume
priority nutrients in similar amounts relative to dairy milk. Allowing
other plant-based milk alternatives with the same nutrient
specifications as soy-based beverage supports consumption of priority
nutrients in similar amounts relative to dairy milk. It also creates
consistency across eligible products and reduces administrative burden
and the possibility of participant and vendor confusion.
USDA does not agree that lactose-free milk and dairy-based yogurt
and cheese alone are sufficient alternatives for WIC participants.
Individuals do not consume dairy for a variety of reasons, including
special dietary needs such as an allergy, or cultural or personal
preferences. While some individuals with lactose intolerance may
tolerate dairy-based yogurt and cheese and soy-based beverages, dairy
and soy are among the top food allergens, making these foods
unavailable options as milk substitutions for WIC participants with
these allergies.
The Department highlights the 2020-2025 DGA's recognition of
beverages fortified with calcium, vitamin A, and vitamin D as included
in the dairy group because of the similarity in nutrient composition
when compared to cow's milk. While the nutritional content of many
plant-based milk alternatives currently available in the retail
marketplace is not similar to dairy

[[Page 28498]]

milk or soy-based beverages, the pathway the Department is creating
through this rulemaking will allow for products to be added in the
future. Additionally, USDA notes that in response to the 2022 proposed
rule, the AAP commented, ``Dairy-free alternatives to milk can be
helpful for children with milk allergies or other dairy restrictions.''
While noting that ``many of these products lack the essential nutrients
that dairy products contain,'' they also stated that they would be
``supportive of the addition of dairy-free alternatives to the WIC food
package so long as their protein, vitamin D, and calcium amounts are
similar to milk and that they do not contain significant added
sugars.'' Allowing WIC State agencies to authorize additional plant-
based milk alternatives that meet the nutrient specifications for WIC-
eligible soy beverage, as the marketplace allows, supports equitable
access to supplemental foods consistent with the legislative intent of
the WIC Program.
b. Add Plant-Based Yogurts and Plant-Based Cheeses
Based on public comment requested, this final rule codifies
allowing plant-based yogurts and cheeses as substitution options for
milk as summarized in the 2022 proposed rule with modification to the
vitamin D specification and the use of an added versus a total sugar
limit (see Establish an Added Sugars Limit for Yogurts and Plant-Based
Milk Alternatives) for plant-based yogurt:
<bullet> Plant-based yogurts must contain <=16 grams of added
sugars and at least 250 milligrams of calcium, 6.5 grams of protein,
and 106 IU (2.67 micrograms) of vitamin D per 8 ounces.
<bullet> Plant-based cheeses must contain at least 250 milligrams
of calcium and 6.5 grams of protein per 1.5 ounces.
Several commenters, including WIC State agencies, supported
allowing additional plant-based yogurts and cheeses (i.e., not just
soy-based) as milk substitution options to accommodate those with dairy
and soy allergies and provide variety for those who follow vegetarian
or vegan dietary patterns. As with plant-based milk alternatives,
commenters likewise cited availability and cost concerns. As noted in
the discussion for plant-based milk alternatives, while the
availability of products that meet nutrient requirements for plant-
based yogurts and cheeses are limited currently, creating a pathway for
future inclusion eliminates a barrier to addressing special dietary
needs and cultural and personal preferences. USDA also received a
request for the vitamin D requirement to match the minimum optional
vitamin D fortification amount outlined in the FDA's updated Standard
of Identity (SOI) (see Vitamin D Fortification of Yogurts) for the
discussion on vitamin D). Only a few commenters opposed adding plant-
based yogurts and cheeses, with a concern expressed for participant
confusion because plant-based milk alternatives are not allowed, and an
assertion that dairy-based yogurt and cheese provide important
nutrients. This final rule allows plant-based milk alternatives, thus
there is consistency in allowing plant-based milk alternatives,
yogurts, and cheeses. USDA agrees that WIC-eligible dairy-based foods
provide important nutrients, including calcium and vitamin D. Likewise,
allowing plant-based yogurts and plant-based cheeses that meet the
nutrient specifications contained in this rule allows for greater
access to these nutrients by participants with certain conditions or
for those who follow vegetarian or vegan dietary patterns.
5. Add a Calcium Specification for Tofu and a Vitamin D Specification
for Yogurt (Sec. 246.10(e)(12), Table 4)
This final rule adds a calcium specification for tofu and a vitamin
D specification for yogurt.
a. Calcium Fortification of Tofu
This final rule codifies a calcium requirement for tofu as
summarized in the 2022 proposed rule with modification to 100
milligrams of calcium per 100 grams of tofu.
Commenters, including WIC State agencies, expressed general support
for requiring calcium fortification of tofu, stating this would be
especially beneficial for participants with milk allergies. Many
commenters expressed concerns about current marketplace availability of
tofu products that meet the proposed specification (200 milligrams of
calcium per 100 grams of tofu), stating that this requirement would
remove or eliminate all tofu products currently eligible and noting the
effect that adding calcium has on the texture of tofu.
Based on comments, USDA conducted additional marketplace analyses.
Using USDA Agricultural Research Service's (ARS) Food Data Central
Database, 27 out of 40 tofu products randomly selected across a variety
of brands and textures were found to provide 100 milligrams or more of
calcium per 100 grams of tofu. For the three WIC State agencies that
provided information about products in their state, this calcium amount
is consistent with the lower end of what they reported as being
available: 100-153 milligrams of calcium per 100 grams of tofu. Calcium
is a priority nutrient for the WIC target population, so adding a
calcium specification for WIC-eligible tofu ensures those who
substitute tofu for milk still obtain calcium. Lowering the minimum
requirement from 200, as proposed, to 100 milligrams of calcium per 100
grams of tofu increases access to this priority nutrient in a manner
that reflects current marketplace availability.
b. Vitamin D Fortification of Yogurts
This final rule codifies a vitamin D requirement for yogurts
(dairy- and plant-based) as summarized in the 2022 proposed rule with
modification to 106 IU (2.67 micrograms) of vitamin D per 8 ounces of
yogurt. The Department is also extending the implementation date for
this requirement to April 26, 2027, based on public comment. This date
is a deadline, thus if products that meet the vitamin D specification
are available sooner, WIC State agencies may and are encouraged to
authorize these products in advance of this date.
Most commenters, including WIC State agencies, supported adding a
vitamin D specification to yogurt to improve participant health, citing
the underconsumption of this nutrient. The primary concern among
commenters, including a couple of WIC State agencies, who supported and
opposed this provision was marketplace availability and the potential
for reducing or eliminating all currently authorized yogurts followed
by a concern about manufacturers' willingness to modify products.
However, through the public comment process, an industry advocacy group
and several yogurt manufacturers expressed their support for a vitamin
D specification for WIC-eligible yogurts. No manufacturers or industry
representatives submitted comments in opposition to adding a vitamin D
specification, and two of the manufacturers and an industry advocacy
group recommended that USDA implement a specification to match the
minimum optional vitamin D fortification amount outlined in the FDA's
updated SOI for yogurt (21 CFR 131.200), which states that: ``If added,
vitamin D must be present in such quantity that the food contains not
less than 10 percent Daily Value per Reference Amount Commonly Consumed
(RACC) thereof, within limits of current good manufacturing
practices.'' With a RACC of 6 ounces and a Daily Value of 800 IU (20
micrograms), the minimum amount of

[[Page 28499]]

vitamin D the FDA SOI requires if yogurt is optionally fortified with
vitamin D is 80 IU (2.0 micrograms) per 6-ounce serving. This amount
meets the FDA definition of a ``good source'' of a nutrient and
translates to approximately 106 IU (2.67 micrograms) per 8 ounces,
slightly higher than the 2022 proposed rule's 100 IU (2.5 micrograms)
per 8 ounces. The Department finds merit in industry's request to align
vitamin D specifications for WIC-eligible yogurts with the FDA's SOI
for yogurt (21 CFR 131.200) when yogurt is voluntarily fortified with
vitamin D and is modifying the proposed specification accordingly.
Industry commenters also requested USDA extend implementing this
provision to 30 months to allow time for manufacturers to reformulate
products. The Department finds this timeline to be reasonable based on
the current marketplace requirements for vitamin D in yogurt and the
Department's experience with review of reformulated and new products.
To allow additional time for WIC State agencies' product review and APL
and MIS updates, the Department is further extending the implementation
date for the vitamin D requirement for yogurt by an additional 6
months, for a total of 36 months after publication of this final rule.
USDA received one comment stating that vitamin D is already present
in several other fortified WIC-eligible foods and this nutrient should
be obtained through active time outdoors. As noted in the proposed
rule, the DGA identifies vitamin D as a nutrient of public health
concern for people in all life stages and notes that vitamin D
recommendations are hard to achieve through natural sources from diet
alone and would require consuming foods and beverages fortified with
this vitamin. The DGA also notes that some individuals may have
difficulty producing sufficient vitamin D from sunlight exposure.
Additionally, the Centers for Disease Control and Prevention (CDC) \16\
and National Institute of Health (NIH) \17\ encourage vitamin D
consumption through food or dietary supplements to reduce UV exposure
and ensure an adequate amount is obtained when neighborhood conditions
like weather, crime, traffic, and lack of outdoor space for safe play
limit the ability to spend time outdoors.
---------------------------------------------------------------------------

\16\ The Center for Disease Control and Prevention notes ``there
is no know level of UV exposure that would increase vitamin D levels
without also increasing skin cancer risk. <a href="https://www.cdc.gov/cancer/skin/basic_info/outdoors.htm">https://www.cdc.gov/cancer/skin/basic_info/outdoors.htm</a>.
\17\ National Institutes of Health guidance for vitamin D states
that clothing and sunscreen can block skin production of vitamin D
and that neighborhood social conditions may reduce sun exposure
(<a href="https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6843675/">https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6843675/</a>) and NIH fact
sheet ``Vitamin D--Health Professional Fact Sheet,'' (<a href="https://ods.od.nih.gov/factsheets/VitaminD-HealthProfessional/">https://ods.od.nih.gov/factsheets/VitaminD-HealthProfessional/</a>).
---------------------------------------------------------------------------

6. Allow Reduced-Fat Yogurts for 1-Year-Old Children Without
Restrictions (Sec. 246.10(e)(10) and (11), Tables 2 and 3)
This final rule codifies allowing reduced-fat yogurts for 1-year-
old children without restriction as summarized in the 2022 proposed
rule (i.e., both whole fat and reduced-fat yogurts may be issued to
children 12-13 months of age without consultation with the
participant's healthcare provider).
Commenters, including several WIC State agencies, largely supported
this provision, citing that the DGA dietary pattern for children 12
through 23 months of age includes low-fat plain yogurts in the dairy
food group for this age category to support consumption of a
combination of foods to meet nutrient needs within limited calories.
Commenters also stated that the change would expand yogurt variety and
participant choice for children in this age group, improve
participants' shopping experience because of the expanded options it
affords, increase access to and consumption of dairy/yogurt, and reduce
administrative, participant, and healthcare provider burden. The few
commenters who opposed this provision, including WIC State agencies,
stated that this change would create an administrative burden,
requiring WIC State agencies to re-work the current category/
subcategory structure on the MIS for the different fat levels of
yogurt, and requesting to retain whole fat yogurt as the default
standard issuance and allow the participant to determine which yogurt
best suits their needs at the store.
The Department appreciates support for this provision and
highlights the change to allow whole and low-fat yogurts as standard
issuance to children 12 to 23 months of age aligns with the 2020-2025
DGA and expands yogurt variety and participant choice. While there are
administrative efforts associated with the change, this one-time effort
to update the MIS reduces the ongoing administrative burden of
prescribing fat content at the time of food package prescription, as
well as participant and healthcare provider burden associated with the
current WIC State agency option to require (if necessary) a
consultation with the child's health care provider to issue low-fat
(0.5-2 percent) or nonfat yogurt.
The Department received one comment expressing concern the change
may increase the amount of sugar young children consume, given the
relatively higher added sugar content of low-fat yogurt. Through this
rulemaking, USDA is reducing added sugars provided through the WIC food
packages by no longer allowing flavored milk and placing limits on
added sugars for WIC-eligible plant-based beverages and dairy and
plant-based yogurts. The Department believes this change allows modest
flexibility to participants within the DGA-recommended limits on sugars
that supports a healthy dietary pattern over time and that through
nutrition education WIC staff can work with parents and caretakers to
identify the yogurt that works for them and encourage foods and
beverages with little to no added sugars.
7. Remove Cheese From the Fully Breastfeeding Food Package (Sec.
246.10(e)(7)(ii) and (e)(10) and (11), Tables 2 and 3)
This final rule removes cheese as a separate food category for
fully breastfeeding participants (Food Package VII) as NASEM
recommended to provide a better balance of nutrients and align with the
DGA recommendation for reducing saturated fat consumption. Participants
receiving the fully breastfeeding food package will continue to be able
to substitute cheese for milk like all other participants receiving
milk in their food package.
The Department received several comments in support of this
provision, including from several WIC State agencies, stating that
reducing the cheese allotment would be consistent with NASEM and DGA
recommendations regarding reducing saturated fat intake and provide a
better balance of nutrients. Commenters also noted that retaining the
ability to substitute cheese for milk allows participants continued
access to this food. Some commenters opposed this provision, including
several WIC State agencies, asserting that it is detrimental to nursing
mothers who have increased caloric needs and particularly so for
individuals who are lactose intolerant but may tolerate cheese. These
comments also discussed the overall importance of dairy products to
health and nutrition and that removing cheese could limit calcium and
protein for breastfeeding participants and disincentivize fully
breastfeeding.
The Department reiterates that cheese remains available to all
participants (except for infants) as a partial milk substitution. While
participants receiving the fully breastfeeding food package will no
longer have cheese as a separate food item, they are still able

[[Page 28500]]

to substitute cheese for milk like all other participants issued milk
in their food package. Thus, the revised fully breastfeeding food
package continues to provide access to dairy in an amount consistent
with the supplemental nature of WIC by providing 71 percent of the DGA
dietary pattern recommendations (compared to the current fully
breastfeeding food package that provides 119 percent). This change
aligns with DGA recommendations for reducing saturated fat consumption
and DGA guidance to consume a balanced diet that meets, but does not
exceed, recommended food group and subgroup amounts and nutrients
appropriate for an individual's life stage. With a greater CVV, more
canned fish and eggs, and both legumes and peanut butter, the fully
breastfeeding food package provides a food benefit consistent with
higher caloric needs during this life stage and a better balance of
nutrients. Further, as this rule expands options for participants who
are lactose-intolerant, such as adding plant-based yogurt and plant-
based cheese options and requiring WIC State agencies to authorize
lactose-free milk, this rulemaking is expected to improve equitable
access to key nutrients WIC supplemental foods provide.
The following provisions did not receive significant or substantial
public comment; this final rule codifies the following provisions as
summarized in the 2022 proposed rule:
<bullet> Require all State agencies to authorize unflavored
lactose-free milk.
<bullet> Increase yogurt substitution amounts from 1 quart of
yogurt for 1 quart of milk to allow up to 2 quarts of yogurt for 2
quarts of milk.
<bullet> Expand substitution options by removing the limitation
that no more than a total of 4 quarts of milk (for participants in Food
Packages IV-VI) or 6 quarts of milk (for participants in Food Package
VII) may be substituted for a combination of cheese, yogurt, or tofu.
<bullet> Create separate food packages for children 12 through 23
months (Food Package IV-A) providing 12 quarts of milk and children 2
through 4 years (Food Package IV-B) providing 14 quarts of milk.
<bullet> Update the FDA Standard of Identity (SOI) citations for
yogurt.

D. Infant Foods

As NASEM recommended, this final rule reduces the amount of infant
cereal for all infants and reduces the amount of infant fruits and
vegetables and infant meat for fully breastfed infants. This final rule
also increases substitution amounts for infant fruits and vegetables;
allows forms other than fresh; and lowers the minimum age for all
infants to receive a CVV. These changes provide supplemental quantities
and align with AAP's complementary feeding recommendations. This final
rule does not exclude ``added fats'' from the ingredients authorized
for infant foods as originally proposed.
Early Introduction of Peanut Butter to Infants
This final rule does not address the early introduction of peanut
butter to infants. While the Department appreciates comments on this
topic in conjunction with comments on the proposed changes to infant
foods, the topic is outside the scope of this final rule. Infants ages
6 through 11 months receive complementary foods in the categories of
infant cereals, infant food fruits and vegetables, and infant food
meat. Currently, a legumes and peanut butter category is not part of
the infant food packages. In their 2017 report, NASEM did not recommend
changes to include new infant foods, such as legumes and peanut butter,
to the infant food packages or review the appropriate amount of peanut
butter to include in the infant food package if such changes were made.
The Department recognizes there is an evolving body of scientific data
that supports the early introduction of peanut-containing foods to help
prevent a food allergy to peanuts; however, the applicability to the
WIC food packages still requires further exploration and this topic may
be included as part of the next comprehensive scientific review of the
WIC food packages.
1. Reduce Infant Cereal, Infant Fruits and Vegetables, and Infant Meat
(Sec. 246.10(e)(9), Table 1)
This final rule codifies the reductions to infant foods as
summarized in the 2022 proposed rule. The revisions do not change the
types of infant foods offered, maintaining alignment with DGA
recommendations to introduce foods from all food groups starting at
about 6 months of age and to include foods rich in iron and zinc,
particularly for infants fed human milk. The reduction to infant foods
provides appropriate supplemental quantities, as NASEM recommended, and
align with the AAP's complementary feeding recommendations. In the
interest of clarity, reduction to infant cereal, infant fruits and
vegetables, and infant meat are discussed separately in this section.
a. Infant Cereal
Based on NASEM recommendations, this final rule codifies the
reduction in the amount of infant cereal from 24 ounces to 16 ounces
for fully breastfed infants and from 24 ounces to 8 ounces for
partially (mostly) breastfed and fully formula fed infants. NASEM's
review identified the current infant food packages as providing 150
percent of the maximum amounts of infant cereal recommended by the AAP.
Many commenters, including multiple WIC State agencies, expressed
support for the reduction in infant cereal noting alignment with NASEM
and AAP recommendations. Multiple WIC State agencies reported low
redemption rates of infant cereal, and another commenter stated that
cereal is often used as a starter food for infants up to 9 months of
age and not used much thereafter. Some commenters expressed concern
about reducing cereal for breastfed infants as it is a reliable source
of iron for infants past 6 months of age, especially for infants who do
not receive iron-fortified formula and for the WIC population, which
has higher nutritional risk.
One commenter stated that the 2017 NASEM report reflects an
incorrectly calculated AAP recommendation for infant cereal. The
Department does not agree with this comment. NASEM's recommendations
are based on the AAP's 2014 Pediatric Nutrition, 7th Edition
recommendations, which were unchanged in their 2020 update and remain
current.
The Department agrees that providing iron and zinc rich foods to
infants 6 months of age and older is important, especially for fully
breastfed infants. This final rule provides infant cereal in amounts
that align with the NASEM and current AAP recommendations and recognize
that breastfed infants may require more iron and zinc fortified cereal
than formula fed infants because human milk contains low levels of
these nutrients. USDA may further assess adequate iron intake through
infant cereal during the next comprehensive review of the WIC food
packages.
Arsenic in Infant Cereal
In addition to comments on the amount of infant cereal in WIC food
packages, the Department received a few comments encouraging the
removal of infant rice cereal as a WIC-eligible food, citing high
arsenic levels. Through comments, the Department is aware that several
WIC State agencies have already removed refined infant rice cereals
from APLs due to concerns of arsenic levels. One commenter suggested
requiring infant cereals to be whole grain with the exclusion of brown
rice as a method of reducing exposure to arsenic, while others
acknowledged arsenic concerns

[[Page 28501]]

but encouraged USDA to keep infant rice cereal as a WIC-eligible due to
the importance of having gluten-free options.
The Department is following the recommendations of the FDA's Closer
to Zero \18\ plan to reduce dietary exposure to contaminants (including
arsenic) to as low as possible while maintaining access to nutritious
foods. FDA states arsenic is found in both inorganic and organic forms
and that inorganic arsenic is generally considered more toxic than
organic arsenic. The amount of inorganic arsenic found in rice
products, such as infant rice cereals, varies among manufacturers. To
ensure infant safety, FDA has established an action level for inorganic
arsenic in infant rice cereals that is intended to reduce the possible
risks of neurodevelopmental delays and other health problems that may
occur from consuming inorganic arsenic. Production of infant rice
cereals by companies following FDA's current good manufacturing
practices helps to ensure the safety of this food category. The
Department agrees infant rice cereal is an important gluten-free
alternative and is maintaining this as an option in the WIC food
packages consistent with FDA guidance. WIC State agencies are
encouraged to authorize a variety of infant cereal grain types and
maintain their authority to establish criteria in addition to the
minimum Federal requirements, to include limiting infant rice cereal if
deemed necessary. USDA will continue to work with FDA to communicate
key messaging regarding the safety of the food supply when appropriate.
---------------------------------------------------------------------------

\18\ Food and Drug Administration's Closer to Zero: Reducing
Childhood Exposure to Contaminants from Foods (<a href="https://www.fda.gov/food/environmental-contaminants-food/closer-zero-reducing-childhood-exposure-contaminants-foods">https://www.fda.gov/food/environmental-contaminants-food/closer-zero-reducing-childhood-exposure-contaminants-foods</a>).
---------------------------------------------------------------------------

b. Infant Fruits and Vegetables
As NASEM recommended, this final rule codifies the reduction in
jarred infant fruits and vegetables for fully breastfed infants from
256 ounces per month to 128 ounces per month. According to NASEM, the
current fruit and vegetable amount in the fully breastfed food package
provides more than a one cup-equivalent of fruits and vegetables per
day, an amount difficult for 6 through 11-month-old infants to consume.
The revised amount aligns with the amount currently provided to
partially (mostly) breastfed and fully formula fed infants.
Many commenters, including WIC State agencies, expressed support
for the proposed reductions in infant fruits and vegetables due to low
redemption rates and the importance of introducing a variety of foods--
in multiple forms--to infants beginning at about 6 months. The
Department agrees. As noted in the 2022 proposed rule, the current food
package provides fully breastfed infants with more than a one cup-
equivalent of fruits and vegetables per day, an amount difficult for an
infant 6 to 11 months of age to consume.
The few comments in opposition cited general concern for a
reduction in the amount of food provided, noting this may
disincentivize the fully breastfeeding food package. The Department
appreciates this concern and believes that the numerous changes to this
food package, designed to increase variety, choice, and flexibility
will provide continued appeal for fully breastfeeding participants. In
addition, the Department notes that the reduction aligns with the
overarching rationale for this rulemaking to provide supplemental
amounts of food and improve the balance of foods and nutrients in the
food packages.
The Department also received one suggestion to codify the reduced
amount but introduce this provision beginning at 4 months of age. While
the Department recognizes some infants may show developmental signs of
readiness for nutrient-dense complementary solid foods before 6 months
of age, the AAP recommends complementary foods should be introduced to
infants at about 6 months of age.
c. Infant Meats
This final rule codifies the reduction in infant meats for fully
breastfed infants from 77.5 to 40 ounces, as summarized in the 2022
proposed rule. This revised amount provides approximately 65 percent of
the AAP-recommended maximum (previously 130 percent).
Many commenters, including WIC State and local agencies, expressed
support for the reduction of infant meats in the fully breastfeeding
package to align with the supplemental nature of the program and cited
low redemption rates of infant meats. Several commenters stated that
many of their WIC clients do not like the single ingredient jarred
infant meats. Another commenter stated that pureed meats are one of the
lowest redeemed foods and are not as culturally acceptable within their
Tribe as other protein sources. There were few comments in opposition
to this provision. Some commenters stated that meats are a good source
of complete protein, heme iron, zinc, and other vitamins and minerals
that support neurologic development and immune function, especially
among breastfed infants that do not receive iron supplementation in
formula. Another commenter stated that meat-based protein is considered
optimal for infants as it is a high-quality protein and digested and
absorbed more efficiently.
The Department agrees that infant meats provide a good source of
iron and zinc that is important for fully breastfed infants. However,
reducing infant meats to a supplemental quantity is consistent with the
goals of this rulemaking and dietary guidance to consume a balanced
diet that meets but does not exceed recommended amounts of foods and
nutrients.
Infant Meat Redemption
Due to the low redemption of infant meat and the importance of this
food as an iron source for fully breastfed infants, the Department
requested public comment on ways to support increased redemption of
infant meats, and iron-rich foods in general, for fully breastfed
infants. Several commenters requested USDA allow alternatives to infant
jarred meats, such as infant combination foods containing meats and
vegetables, or allowing meat alternatives such as eggs, legumes, and
tofu. Other commenters recommended adding fresh meat and fish to infant
food packages. The Department appreciates these suggestions but
believes that before such changes can be incorporated, additional
research is needed to identify and develop strategies to increase iron
consumption among WIC infants, as well as identify good sources of heme
iron that meet eligibility criteria for WIC. Although no changes were
made in this final rule in response to these comments, the Department
will consider these comments in the future development of nutrition
education and resources.
The Department appreciates the suggestions to increase redemption
and consumption of infant meat and alternate options for iron-rich
foods. NASEM considered inclusion of infant meat dinners (which contain
meat and vegetables) but determined the amount of iron per ounce is
significantly lower compared to single ingredient products. NASEM also
determined that the non-heme iron found in eggs, tofu, and legumes
would not be nutritionally equivalent to the heme iron available in
infant meats. Regarding seafood for infants, while the current EPA-FDA
advice for eating fish \19\ provides updated information about

[[Page 28502]]

methylmercury exposure for younger children, neither agency has issued
advice on which varieties of fish are safe or how much to recommend for
infants to limit methylmercury exposure. Further, the DGA does not
provide an infant dietary pattern with recommended amounts and types of
fish. The Department may include an assessment of the amounts and types
of fish that could be available in infant food packages during the next
comprehensive review of the WIC food packages.
---------------------------------------------------------------------------

\19\ Advice about Eating Fish (<a href="https://www.fda.gov/food/cfsan-constituent-updates/fda-issues-updated-advice-about-eating-fish">https://www.fda.gov/food/cfsan-constituent-updates/fda-issues-updated-advice-about-eating-fish</a>).
---------------------------------------------------------------------------

Commenters also highlighted the importance of nutrition education
as a way to improve iron consumption. The Department agrees that
nutrition education can be used to encourage consuming iron rich foods,
including those containing meat, and this messaging should continue to
be part of the nutrition education provided to WIC participants.
2. Increase CVV Substitution Amounts for Infant Fruits and Vegetables,
Allow Forms Other Than Fresh, and Lower the Minimum Age for Infants To
Receive a CVV (Sec. 246.10(e)(9), Table 1)
This final rule codifies the increase to the CVV substitution
amount for infants; allows the CVV for infants to be used to purchase
at least one other form of fruits and vegetables in addition to fresh
(see section A. Fruits and Vegetables. Require One Other Form of Fruits
and Vegetables in Addition to Fresh); and lowers the age (from 9 to 6
months) at which the CVV can be substituted for infant fruits and
vegetables, as summarized in the 2022 proposed rule.
Many commenters expressed support for all three actions in this
provision, stating they better meet the needs of and empower families
to prepare more foods at home, accommodate varied food preferences, and
are more consistent with the developmental progression of feeding
complementary foods. One commenter suggested allowing the CVV
substitution to begin at 4 months of age, which the Department will not
implement as NASEM and the DGA recommend introducing complementary
foods around 6 months of age (see b. Infant Fruits and Vegetables
above).
One commenter opposed this provision, stating that allowing the CVV
substitution would be inconsistent with NASEM recommendations and
reduce the net fruit and vegetable servings obtained through WIC and
expressed concern that substituting a CVV for infant fruit and
vegetable purees may result in older family members consuming the food,
instead of the infant as intended. The Department clarifies this
provision mirrors NASEM's recommendation to provide either: 128 ounces
of infant fruits and vegetables; 64 ounces of infant fruits and
vegetables and a $10 CVV; or no infant fruits and vegetables and a $20
CVV, and that all three options support a supplemental amount of fruits
and vegetables for infants. Substituting jarred infant fruits and
vegetables with the CVV may allow participants to buy more servings of
these foods and allow caregivers to prepare foods with developmentally
appropriate textures for older infants. Regarding the potential of
another family member using the infant CVV, the Department appreciates
this concern and believes it is addressed through education at the time
of food package issuance, which includes instructions that all foods
issued--not just the CVV substitution--are intended for participant use
only.
3. Withdraw Proposed Provision To Prohibit Added Fats in Infant Foods
(Sec. 246.10(e)(12), Table 4)
This final rule will not codify excluding ``added fats'' from the
ingredients allowed in infant foods as summarized in the 2022 proposed
rule. The Department proposed this change to align infant food packages
with the healthy eating patterns of children as they grow. However,
several commenters expressed general concern about this proposed
provision, finding the recommendation vague and affirming that
variables (such as those described below) would need to be considered
to carry out the provision effectively. Other commenters discussed the
benefits of fats, including omega-3 fatty acids needed for brain
development. One commenter questioned the availability of infant meats
without broth/gravy containing added fats, suggesting USDA consider
excluding added fats from infant cereal, fruits, and vegetables only.
The Department finds merit in the concerns commenters expressed
pertaining to restricting all added fats from infant foods which would
include polyunsaturated fats which play a role in brain development of
infants as well as the operational feasibility of implementing this
provision. USDA may consider additional research during the next
comprehensive review of the food package to determine if restricting
added fats is feasible in a way that supports infants' comprehensive
nutrition needs and program administration.

E. Add Infant Formula Flexibilities and Create a Separate Food Package
for Partially (Mostly) Breastfeeding Participants

This final rule increases formula amounts in the first month for
partially (mostly) breastfed infants; allows all prescribed infant
formula quantities to be considered ``up to'' amounts; and creates a
separate and enhanced food package for partially (mostly) breastfeeding
participants. These changes will be codified as proposed, with no
modification, and will collectively add flexibilities to infant formula
amounts and create a separate food package to strengthen support
individual breastfeeding goals to help participants establish
successful long-term breastfeeding.
1. Increase Formula Amounts in the First Month for Partially (Mostly)
Breastfed Infants (Sec. 246.10(e)(1)(ii) and (e)(9), Table 1)
This final rule codifies the increased maximum monthly infant
formula amounts for partially (mostly) breastfed infants in the first
month from 104 fluid ounces to up to 364 fluid ounces, as summarized in
the proposed rule. Consistent with current requirements, the amount of
formula issued will continue to be tailored based on an individual
nutrition and breastfeeding assessment. [Note: The revised amount of
364 fluid ounces reflects the FNB and corresponds to the MMA of 388
fluid ounces of reconstituted liquid concentrate, 384 fluid ounces of
ready-to-feed, or 435 fluid ounces of reconstituted powder formula for
partially breastfed infants aged one through three months. Therefore,
this provision eliminates the need for the birth to one month feeding
category.]
This proposed change received support from many commenters, who
cited that the change would assist participants in achieving their
breastfeeding goals, ensure infants receive adequate nutrition,
increase breastfeeding duration, and decrease premature categorization
of fully formula-fed infants. A few commenters requested USDA focus on
providing education and counseling resources to help WIC staff support
participants in the early postpartum period. They also requested
additional breastfeeding supports to address breastfeeding challenges
as well as additional funding for training staff and incentivizing the
breastfeeding packages. One commenter requested the Department consider
making the ``up to'' 364 ounces in the first month a WIC State agency
option. A few commenters mentioned that more

[[Page 28503]]

research is needed to determine if the presence of formula on the WIC
EBT card impacts a participant's breastfeeding journey.
Increasing the amount of infant formula in the first month for
partially (mostly) breastfed infants, as NASEM recommended, encourages
participants in the early postpartum period to try to breastfeed or
extend breastfeeding duration by providing flexibility to tailor
formula amounts based on an individual nutrition and breastfeeding
assessment. As NASEM noted, this change is intended to prevent the
premature categorization of an infant as ``fully formula fed'' and a
mother as ``postpartum'' and allow the mother to receive the partially
(mostly) breastfeeding food package to support nutritional needs and
breastfeeding goals. USDA agrees with commenters who stated that early
postpartum anticipatory guidance and frequent contact with skilled
breastfeeding staff are key ways to encourage and support WIC
participants in reaching their individual breastfeeding goals. The
Department finds merit with the comments requesting further examination
of the impact of this provision on breastfeeding duration and will
consider this for future research opportunities.
2. Allow Prescribed Infant Formula Quantities To Be Considered ``up
to'' Amounts (Sec. 246.10(e)(9), Table 1)
This final rule codifies that all prescribed infant formula
quantities will be considered ``up to'' amounts as summarized in the
2022 proposed rule. This change is intended to reduce interference with
the successful establishment of breastfeeding.
Many commenters expressed support for allowing all prescribed
infant formula quantities to be considered ``up to'' amounts.
Specifically, several commenters expressed support for tailoring
formula benefits to meet individual needs. An individual commenter
thanked the Department for removing the minimum nutrition requirement.
One commenter stated the change aligns with recommendations among the
healthcare/nutrition community on customized nutrition and another said
the change would help establish long-term breastfeeding.
One commenter supported removing the FNB requirement stating that
it, and MMAs, create a narrow window of formula amounts that WIC
agencies must provide depending on the age of the client. While the
Department appreciates this comment, the FNB is intended to provide
close to 100 percent of the nutritional needs of a non-breastfed infant
from birth to 6 months and is used as the basis for determining
comparable MMAs of infant formula across the three physical forms of
formula. The MMA is intended to provide infants the FNB with
consideration of the reconstituted fluid ounce yields of the physical
forms of formula products. However, formula amounts, even those in the
fully formula-fed category, can still be individually tailored to meet,
but not exceed, the formula needs of breastfeeding infants.
A few commenters had questions about the meaning of this provision
as well as operational concerns. One commenter stated they would rather
address overissuing/over feeding of formula via education at the time
formula is issued. Another commenter requested clarity on what is meant
by the phrase ``up to'' amounts for fully formula fed infants. The
Department clarifies that across all infant food packages, formula
amounts should be considered ``up to'' amounts to emphasize the
importance of assessing the actual need for formula and reduce the
possibility of interfering with the successful establishment of the
participant's desired breastfeeding behavior. One commenter stated this
change will be a burden for MIS changes because the FNB serves as a
cutoff to determine whether participants are fully formula feeding or
partially (mostly) breastfeeding and that WIC State agencies using the
roundup method still need an FNB. The Department appreciates this
concern and provides further clarification on implementation related
comments in section V. Implementation.
Iron Standard Comments
Although the Department did not propose a revision to the iron
standard for infant formula, it did seek comment on the current infant
formula iron requirement of at least 10 milligrams of iron per liter
(at least 1.5 milligrams per 100 kcal) of formula. Several commenters
stated that the current requirement for iron-fortified formula should
remain, noting iron-deficiency anemia continues to be a health concern
for infants in the United States. A few commenters said they would
support a change if backed by evidence. One commenter stated they
support reducing the standard if this allows for a greater variety of
formula to be available for WIC participants without compromising
infant health. Another commenter noted that because infants normally
have dietary iron sources other than formula (especially fortified
infant cereal and meats), that 12 milligrams of iron per liter in
formula appears to supply more iron than is necessary. In its comments,
the AAP concluded that infant formula containing 12 milligrams of
elemental iron per liter is safe for its intended use. One commenter
requested that USDA consider revising the minimum iron requirements for
infant formula to be consistent with the 1 milligram per 100 kcal
requirement under Sec. 246.10(e)(1)(iii) for iron-fortified infant
formulas.
The Department appreciates the comments provided and agrees with
most commenters that a regulatory change to the current iron
specifications for infant formula is not warranted at this time due to
inadequate evidence available to support a modification. The Department
agrees with NASEM that updated data is needed to understand the optimal
level of iron in infant formula, particularly in cases where the
baseline iron status of infants is not optimal. The FDA announced on
May 19, 2023, that NASEM will conduct a study to look at supply, market
competition, and regulation of infant formula in the U.S. The study
will explore the current state of the U.S. infant formula market. The
study will also examine the differences in nutrition content, labeling,
and regulatory requirements between infant formula sold in the U.S. and
forms sold in foreign markets. Results of the study will be submitted
to Congress and the FDA. New evidence from this study and other
available sources regarding iron formula supplementation, including the
FDA/NASEM study may be used to inform the next review of the WIC food
packages.
3. Create a Separate and Enhanced Food Package for Partially (Mostly)
Breastfeeding Participants (Sec. 246.10(e)(5), (7), (10), and (11),
Tables 2 and 3)
This final rule codifies the creation of separate food packages for
partially (mostly) breastfeeding participants, as summarized in the
proposed rule. Pregnant participants will now receive Food Package V-A
and partially (mostly) breastfeeding participants and pregnant
participants with two or more fetuses will now receive Food Package V-
B.
Many commenters expressed support for creating a separate and
enhanced food package for partially (mostly) breastfeeding
participants. Several commenters stated it better met the nutrient
needs of participants in these categories, better aligned with NASEM
recommendations on customized nutrition, supported breastfeeding, more
accurately reflected breastfeeding rates,

[[Page 28504]]

better categorized participants, and strengthened WIC's ability to
address food access and health disparities among participants. Some
comments were in support of the new food package for partially (mostly)
breastfeeding participants, but encouraged incentivizing breastfeeding
in other ways, including through the use of breastfeeding peer
counselors and nutrition education.
A few commenters asked that breastfeeding benefits be expanded to
two years instead of one year to incentivize breastfeeding. WIC
legislation specifies that ``breastfeeding women means women up to one
year postpartum who are breastfeeding their infants.'' \20\ Therefore,
the Department is unable to extend the fully breastfeeding category to
participants who are past one year postpartum.
---------------------------------------------------------------------------

\20\ 42 U.S.C. 1786(b)(1).
---------------------------------------------------------------------------

Some commenters specifically addressed the food package for
participants who are pregnant with or breastfeeding multiples. One
commenter stated that participants who are breastfeeding multiples
should remain in the same category as pregnant with multiples
participants so they can benefit from the extra calories this food
package provides. Another commenter asked for a separate food package
for breastfeeding multiples, since applying the 1.5 multiplier to the
allowed food quantities for Food Package VII can be difficult to
translate to actual WIC purchases. The commenter also requested the
food package be updated to list specific MMAs in amounts that translate
to whole containers. Per the DGA and NASEM's recommendations,
participants who are fully breastfeeding multiple infants, pregnant
with multiple fetuses, or both pregnant and breastfeeding have higher
nutrient and caloric needs than participants with singletons. In the
absence of any evidence on the additional energy needs for the
participants fully breastfeeding multiple infants, NASEM estimated the
additional energy need would be approximately 400 kcal per day for
additional milk produced and assumed no further maternal fat
mobilization. This represents approximately 50 percent more energy than
the fully breastfeeding package supplies, indicating the current
regulation to provide 1.5 times Food Package VII to these participants
is appropriate. To eliminate concern about providing ``half'' of a food
package, WIC State agencies have the option to issue foods in Food
Package VII in amounts averaged over a 2-month timeframe where they
issue double the ``regular'' fully breastfeeding package one month and
the ``regular'' fully breastfeeding package the next month. NASEM did
not study, nor did USDA propose a separate WIC food package for
participants fully breastfeeding multiple infants.
Several commenters raised concerns that this change could have
negative impacts on breastfeeding efforts. A few commenters stated the
proposed revision would make the food packages for exclusively
breastfeeding participants and partially (mostly) breastfeeding
participants similar, minimizing the actual and perceived value of the
exclusively breastfeeding package compared to the partially
breastfeeding package. Some commenters reasoned the new food package,
along with the reduction in benefits for fully breastfeeding
participants, would disincentivize participants to fully breastfeed.
The Department appreciates comments highlighting the importance of
nutrition education and other resources to support and encourage
exclusive breastfeeding and will continue to evaluate and add to
breastfeeding support services as needed. The Department clarifies that
participants in the fully breastfeeding category will still receive
more benefits than partially (mostly) breastfeeding participants due to
their higher caloric needs.

F. Breakfast Cereals

This final rule requires that WIC-eligible whole grain breakfast
cereals contain a whole grain as the first ingredient. This rule
modifies the initial proposal and requires 75 percent of a WIC State
agency's authorized breakfast cereals to meet the whole grain criteria
of having whole grain as the first ingredient; and breakfast cereals
contain no more than 6 grams of added sugars per dry ounce.
1. Revise Whole Grain Criteria for Breakfast Cereals (Sec.
246.10(e)(12), Table 4)
This final rule codifies the whole grain criteria for breakfast
cereals as summarized in the 2022 proposed rule, requiring WIC-eligible
whole grain cereals to contain a whole grain as the first ingredient.
Commenters expressed general support for this provision, with many
WIC State agencies appreciating the reduced burden to operationalize
the criteria for whole grain breakfast cereal, explaining the current
criteria (having whole grain as the primary ingredient by weight and
meeting the FDA labeling requirements for making a health claim as a
whole grain food with moderate fat content) requires careful assessment
of the ingredient list and Nutrition Facts label. Several commenters
appreciated the Department's intent to align the criteria with other
Federal nutrition programs and suggested that for full alignment, USDA
modify the provision to allow breakfast cereals with either a whole
grain as the first ingredient or at least 50 percent whole grains.
While the Department appreciates this suggestion, requiring that whole
grain breakfast cereals contain a whole grain as the first ingredient
aligns with the goal of easing program administration for WIC State and
local agencies, vendors, and participants. The revised criteria will
not necessarily preclude a product with at least 50 percent whole
grains from qualifying as a WIC-eligible whole grain breakfast cereal.
The few comments opposing this provision cited concern that
breakfast cereals with a refined grain as the first ingredient but with
more than 50 percent total whole grains would no longer be eligible.
The Department understands and addresses this concern by requiring that
at least 75 percent of breakfast cereals meet the criteria for whole
grain cereal, as discussed below.
2. Require 75 Percent of WIC State Agency Authorized Breakfast Cereals
Meet Whole Grain Criteria (Sec. 246.10(e)(10) Through (12), Tables 2
Through 4)
This final rule codifies the requirement that WIC-eligible
breakfast cereals meet the whole grain criteria as summarized in the
2022 proposed rule with modification to require 75 percent of cereals
rather than 100 percent of cereals meet the whole grain requirement as
initially proposed.
USDA received numerous comments in support of the provision as
proposed. In expressions of support, commenters stated that requiring
all WIC-eligible breakfast cereals to be whole grain aligns with the
DGA recommendation to consume at least half of total grains as whole
grains and supports consumption of an under consumed food subgroup and
the nutrients whole grains provide. Several commenters suggested the
provision would have an added benefit of expanding marketplace
availability of whole grain cereals. The Department agrees with the
importance of consuming whole grains and clarifies that while the
marketplace could expand further, there are numerous breakfast cereals
currently available that meet the whole grain criteria, including
gluten-free varieties suitable for individuals with allergies to wheat.

[[Page 28505]]

While commenters supported the goal of increasing whole grain
consumption, the Department received many comments in opposition to
requiring that all breakfast cereals meet the whole grain criteria. WIC
State agencies cited the increased burden on small vendors and the
reduction in participant choice as primary concerns. Some commentors
noted that cereal consumption can help drive milk and fruit consumption
as well as highlighted the overall nutrients cereals provide (e.g.,
iron and folate) and hypothesized that the changes would negatively
impact consumers who prefer refined grain, rice- and corn-based
breakfast cereals. Other commenters expressed the view that this change
will better serve participants with high rates of diet-related
diseases, including obesity and diabetes, and low levels of whole grain
consumption.
The Department appreciates the comments received on this provision
and specific suggestions to modify the requirement so that 75 percent
of WIC-eligible breakfast cereals meet the whole grain criteria.
Breakfast cereal is included in the WIC food packages to deliver key
nutrients--primarily iron--to WIC participants. Some highly redeemed
WIC cereals deliver key nutrients (e.g., iron, folate) but do not
contain whole grains or contain some whole grains but do not have a
whole grain as the first ingredient. The Department acknowledges that
consuming non-whole grain cereal contributes to the delivery of
important nutrients for healthy development, including iron and folate,
as well as the nutrients from milk and fruit consumed with it.
Additionally, the Department values consistency across Federal
nutrition programs and recognizes that in the School Meal Programs, the
majority of, but not all, grain items must be whole grain. For these
reasons and recognizing a healthy dietary pattern can include whole and
refined grains in nutrient-dense forms, the Department is requiring
that at least 75--rather than 100--percent of breakfast cereals a WIC
State agency authorizes contain whole grain as the first ingredient.
The Department remains committed to promoting increased whole grain
consumption through nutrition education and highlights that WIC State
agencies maintain the option to require that all cereals contain whole
grain as the first ingredient. The Department encourages WIC State
agencies to utilize redemption data to evaluate participant selections
and support shifts in behavior toward the consumption of whole grain
breakfast cereals by authorizing an appropriate number and selection of
whole grain options.
3. Breakfast Cereals Must Contain No More Than 6 Grams of Added Sugar
per Dry Ounce (Sec. 246.10(e)(12), Table 4)
This final rule codifies a limit of 6 grams of added sugars per dry
ounce of breakfast cereal based on public comment as requested in the
2022 proposed rule.
In response to the request for comment on the use of an added
sugars limit instead of a total sugars limit for breakfast cereal, the
Department received broad general support. Commenters noted an added
sugars limit aligns with current dietary guidance and Federal standards
for Child Nutrition Programs. Commenters further highlighted that an
added sugars limit allows for distinction between naturally occurring
sugars and those added during product manufacturing, which is not
possible with a total sugars limit. The Department agrees there is
value in alignment across Federal nutrition programs and that an added
sugars limit is consistent with the 2020-2025 DGA as well as feasible
to operationalize following the addition of added sugars to the
Nutrition Facts label.\21\
---------------------------------------------------------------------------

\21\ NASEM provided final recommendations for total sugars in
its 2017 report, also providing added sugars limits for specific
products should the FDA's regulation to include added sugars on food
labels be implemented. With FDA's labeling requirement for added
sugars now in place and recognizing value in consistency across
Federal Child Nutrition Programs, USDA is replacing total sugar
limits with added sugars limits for specific food categories as
discussed in this final rule.
---------------------------------------------------------------------------

Comments in opposition cited concern that an added sugars limit may
reduce the number of WIC-eligible breakfast cereals. A small number of
WIC State agencies noted the additional burden associated with
identifying breakfast cereals meeting the added sugars limit. One
commenter suggested an added sugars limit may increase the use of low-
and no-calorie sweeteners to retain product palatability. The
Department clarifies the added sugars limit maintains the same numeric
limit (6 grams) as the current total sugars limit; however, the limit
no longer applies to naturally occurring sugars, in effect creating a
more permissive standard for products containing naturally occurring
sugars. In practice this means that no currently eligible WIC breakfast
cereals will be excluded under the added sugars limit. The Department
appreciates the burden associated with identifying products that meet
WIC specifications and the potential substitution of low- and no-
calorie sweeteners for caloric alternatives; however, the Department
recognizes these considerations exist regardless of whether the limit
applies to total or added sugars.

G. Whole Wheat Bread, Whole Grain Bread, and Other Whole Grain Options

This final rule reduces the amount of whole wheat bread, whole
grain bread, and whole grain options in the child food packages and
increases the amount in the pregnant, postpartum, and breastfeeding
food packages as proposed. This rule also expands whole grain options
as proposed with the modification to allow for additional whole grain
options that meet regulation requirements.
1. Revise Maximum Monthly Allowances for Whole Wheat, Whole Grain
Bread, and Other Whole Grain Options (Sec. 246.10(e)(10) and (11),
Tables 2 and 3)
This final rule codifies the reduction in bread and whole grain
options in the child food packages (from 32 to 24 ounces), and the
increase in bread and whole grain options in the pregnant, postpartum,
and breastfeeding food packages (from 16 to 48 ounces) as summarized in
the 2022 proposed rule.
Commenters, including several WIC State agencies, expressed mixed
support for this provision, with many generally supporting the increase
for pregnant, postpartum, and breastfeeding participants but with some
concern cited over the reduced quantities for children. Commenters
asserted the importance of consuming and ensuring equitable access to
whole grains, highlighting the reduced quantity for children could lead
to a reduction in whole grain intake. Consistent with comments received
on other provisions reducing quantities of supplemental foods provided,
including juice and milk, several WIC State agencies noted the reduced
quantity of bread and whole grain options may disincentivize
participation and impede participant retention goals. Commenters
generally appreciated the Department aligning quantities with the
common 24-ounce package size.
The Department agrees that providing whole wheat bread, whole grain
bread, and other whole grain options through the WIC food packages is
important to support whole grain consumption among WIC participants.
The quantities of 24 ounces for children and 48 ounces for pregnant,
postpartum, and breastfeeding participants provide up to 53 percent of
the whole grain subgroup amount recommended in the DGA dietary
patterns, which the Department believes is an appropriate supplemental

[[Page 28506]]

amount. Providing quantities that align with common package sizes found
in the marketplace supports the Department's goal of providing
equitable access to supplemental foods while ensuring operational
feasibility. In combination with the codified change to the MMA (see
section J: Maximum Monthly Allowances (MMA)) that provides additional
flexibility in authorizing package sizes, the change will also ease the
burden on vendors to stock the 16-ounce package sizes that may be
difficult to acquire.
2. Change Criteria for Whole Grain Breads (Sec. 246.10(e)(12), Table
4)
This final rule codifies the change in criteria for whole grain
bread to require that such breads must contain at least 50 percent
whole grains with the remaining grains being either enriched or whole
grains as summarized in the 2022 proposed rule. The current requirement
that whole grain bread conform to FDA standards of identity, as
applicable, is maintained.
Most commenters, including many WIC State agencies, supported the
change in criteria for whole grain bread, with several acknowledging
the alignment with other Federal nutrition programs. Many commenters
stipulated support for this provision as dependent on the Department
providing guidance on the evaluation of grain products, noting that
product labels often do not easily identify the whole grain composition
placing the burden on WIC State agencies to identify allowable products
under the revised criteria. Commenters further suggested USDA consider
individuals with intolerances or allergies to wheat in finalizing the
criteria for whole grain breads.
The Department agrees with the importance of guidance on the
evaluation of grain products meeting the criteria for whole grain
breads and will support WIC State agencies in the implementation of
this provision. The Department understands the importance of providing
whole grain foods that do not contain gluten to accommodate special
dietary needs and clarifies that in addition to whole wheat bread,
which contains gluten, whole grain breads, which may or may not contain
gluten depending on the grain(s) included, continue to be WIC-eligible
foods. The Department encourages WIC State agencies to authorize whole
grain breads without gluten as necessary to meet the needs of their
participants. Additionally, the Department is expanding whole grain
options in this final rule, as discussed below.
3. Expand Whole Grain Options (Sec. 246.10(e)(10) Through (12), Tables
2 Through 4)
This final rule codifies the expansion of whole grain options to
include the following options as summarized in the 2022 proposed rule:
quinoa; wild rice; millet; triticale; amaranth; kamut; sorghum; wheat
berries; tortillas made with folic acid-fortified corn masa flour (once
available in the marketplace); corn meal (including blue); teff;
buckwheat; and whole wheat pita, English muffins, bagels, and naan.
Further, based on public comments received, to increase participant
choice, and maximize administrative flexibility, this final rule allows
WIC State agencies to authorize additional whole grain options that
meet nutrient requirements in WIC regulations (i.e., do not include
added fats or sugars, salt, or oil,\22\ and provided the MMA
requirements are met (see section J. Maximum Monthly Allowances (MMA)).
---------------------------------------------------------------------------

\22\ Whole grain options must be without added sugars, fats,
oils, or salt (i.e., sodium) as specified in Sec. 246.10 Table 4 of
``Final Rule: Revisions in the WIC Food Packages.'' 79 FR 12274
(March 4, 2014).
---------------------------------------------------------------------------

Commenters, including numerous WIC State and local agencies,
broadly supported this provision, noting the expanded options will
allow participants to enjoy a greater range of nutrient-dense foods
while accommodating special dietary needs (e.g., food allergies) and
cultural and personal preferences. In expressions of support, several
WIC State agencies suggested USDA add additional gluten-free options
such as red rice, black rice, freekeh, spelt, and farro, or that USDA
include flexibility for WIC State agencies to authorize other
nutritionally appropriate whole grain options based on popularity and
availability.
The Department agrees with the importance of participant choice and
accommodating cultural and personal dietary preferences and appreciates
suggestions to further expand whole grain options. The Department
recognizes that culturally preferred foods vary and are unique to
individual cultural identity and that WIC State agencies are best
positioned to determine the whole grain options to authorize to
accommodate the needs of their participants. Therefore, through this
final rulemaking, USDA provides the option for WIC State agencies to
authorize additional whole grain options that do not include added fats
or sugars, salt, or oil, including but not limited to the options
suggested through public comments (e.g., red rice, black rice, freekeh,
spelt, farro). The Department encourages WIC State agencies to add
products based on participant appeal in addition to the other factors
outlined at Sec. 246.10(b)(1)(i) including nutritional standards,
competitive cost, and Statewide availability. If added to the APL, USDA
reminds WIC State agencies of the requirement at 7 CFR 246.4(c) to
submit an amendment to the State Plan for the current fiscal year to
the appropriate USDA FNS Regional Office.
One commenter requested clarification on changes to the minimum
stocking requirements for vendors, noting the potential for food waste
and economic loss if vendors are required to stock whole grain options
that are not popular locally. In response, the Department clarifies
that with this provision, there will be no changes to the whole grain
stocking requirement of at least one whole grain cereal set in WIC
regulations Sec. 246.12(g)(3)(i). The Department recognizes WIC State
agencies may choose to establish additional minimum stocking
requirements to ensure access to a greater variety of supplemental
foods. However, establishing additional minimum stocking requirements
cannot have the effect of limiting either the number or distribution of
WIC authorized vendors in such a way that participants cannot
reasonably redeem their benefits.

H. Canned Fish

This final rule expands the categories of participants receiving
canned fish as proposed, with the modification of including 1 year old
children, to create more equitable access to this under consumed,
nutrient-dense food.
1. Add Canned Fish to Food Packages for Children (1 Through 4 Years)
(Sec. 246.10(e)(4)(ii) and (e)(10) Through (11), Tables 2 Through 3)
This final rule codifies the addition of canned fish to the food
packages for children with modification to provide:
<bullet> 6 ounces per month for children 2 through 4 years of age,
versus 5 ounces as proposed, and
<bullet> 6 ounces per month for children 12 through 23 months of
age.
In the 2022 proposed rule, out of an abundance of caution for the
safety of young children and the concern for methylmercury exposure,
USDA limited the addition of canned fish per month to 5 ounces for
children 2 through 4 years and excluded canned light tuna as a canned
fish option for children. At the time, the Department lacked
information on marketplace availability of WIC-eligible canned
varieties in sizes that would provide a supplemental amount for 1-year
old children and meet

[[Page 28507]]

the EPA-FDA \23\ advice for eating fish and DGA recommendations.
---------------------------------------------------------------------------

\23\ Advice about Eating Fish [verbar] FDA (<a href="https://www.fda.gov/food/consumers/advice-about-eating-fish">https://www.fda.gov/food/consumers/advice-about-eating-fish</a>)- Recommendations include 2
servings * of fish a week from the ``Best Choices'' list.
<bullet> * Serving size for 1-3 years old is 1 ounce. Serving
size for 4-5 years old is 2 ounces.
<bullet> Children ages 1-4 years: Canned light tuna and chub
mackerel should not be consumed if greater than 2 oz per week is
consumed.
---------------------------------------------------------------------------

Commenters, including WIC State and local agencies, expressed broad
support for providing fish in the child food packages, citing the
benefits of fish in helping children meet their nutrient needs for
optimum growth and development as well as reducing risk of developing
chronic diseases. In addition to being supportive of adding fish, the
food industry, many WIC State agencies, and professional organizations
commented on the importance of providing light tuna as an option for
all children 1 to 4 years of age.
To inform this final rule, USDA requested public comment on the
availability of 3-ounce or smaller package sizes of canned salmon,
Atlantic mackerel, and sardines in boneless varieties, and canned light
tuna in package sizes safe for consumption by young children (i.e., 2
ounces). In response, many commenters provided information on package
size availability and availability of fish without bones including
confirmation from the food industry that salmon and light tuna are
available in 2.5- to 2.6-ounce sizes and that light tuna is available
in 3-ounce sizes. Some WIC State agencies requested an ``up to'' amount
of 6 ounces per month and an increase in allowed fish amount for
children to account for the available 2.6-ounce package size. Some WIC
State agencies opposed adding fish to the food packages out of concern
for availability of canned salmon, Atlantic mackerel, and sardines in
rural stores. However, several WIC State agencies stated that 2.5- and
2.6-ounce packages of light tuna with low-sodium options are available
in many areas.
In alignment with NASEM and DGA recommendations and EPA-FDA joint
advice about eating fish, and in consideration of the numerous comments
and evidence received on marketplace availability of smaller container
sizes of WIC-eligible varieties of canned fish in both boneless and
bone-in options, this final rule adds 6 ounces of canned fish to the
food packages for children 1 through 4 years of age in the same
varieties as canned fish offered to pregnant, postpartum, and
breastfeeding participants (i.e., salmon, sardines, Atlantic mackerel,
Chub mackerel, and light tuna).
The Department appreciates and agrees with comments highlighting
the important role WIC nutrition education will have in encouraging
parents and caretakers to select boneless canned fish or remove bones
prior to consumption to prevent choking, choose lower sodium varieties
and amounts that limit methylmercury exposure, and preserve unused
portions of canned fish safely.
2. Add Canned Fish in Food Packages for Pregnant, Postpartum, and
Partially (Mostly) Breastfeeding Participants; Revise Amounts for Fully
Breastfeeding Participants (Sec. 246.10(e)(5)(ii), (e)(6)(ii), and
(e)(10) and (11), Tables 2 and 3)
This final rule codifies the monthly amounts of canned fish for
pregnant, postpartum, and partially (mostly) and fully breastfeeding
participants as summarized in the 2022 proposed rule:

<bullet> Pregnant and postpartum: 10 ounces canned fish
<bullet> Partially (mostly) breastfeeding: 15 ounces canned fish
<bullet> Fully breastfeeding: 20 ounces canned fish

Commenters expressed broad support for adding canned fish to the
WIC food packages for pregnant, postpartum, and partially (mostly)
breastfeeding participants and revising amounts for fully breastfeeding
participants. In expressions of support, commenters asserted that
omega-3 fish oils are essential for reducing risk for pre-term births
and other such complications and that the changes would provide more
equitable access to a nutrient-dense food choice, for which current
intakes fall below DGA-recommended levels. A WIC State agency commented
that the change will improve nutrient content and versatility of the
WIC food packages. The Department appreciates comments expressing
concern about the reduction of canned fish for the fully breastfeeding
food package and requests to increase amounts of canned fish for
partially (mostly) and fully breastfeeding participants. The revised
monthly canned fish amounts for all pregnant, postpartum, and
breastfeeding participants align with the supplemental nature of WIC
and recommendations for DGA healthy dietary patterns.
3. Revise WIC-Eligible Varieties (Sec. 246.10(e)(12), Table 4)
This final rule codifies removing jack mackerel from the WIC-
eligible canned fish varieties as summarized in the 2022 proposed rule.
Commenters expressed broad support for revising WIC-eligible fish
varieties. One WIC state agency expressed opposition to the exclusion
of jack mackerel, adding that the decision would increase its
administrative burden. The FDA and EPA currently do not have
methylmercury data on the commercial canned fish product ``jack
mackerel'' and do not include this product in their joint advice about
eating fish. Furthermore, the FDA guidance on defining jack mackerel
species referenced in Sec. 246.10(e)(12) is no longer available. Due
to the lack of data on methylmercury levels in jack mackerel, this
final rule retains the provision to remove jack mackerel as an
allowable fish type for WIC. All other WIC-eligible varieties of canned
fish (i.e., salmon, sardines, Atlantic mackerel, Chub mackerel, and
light tuna) will be available to child, pregnant, postpartum, and
breastfeeding participants.
In response to the request USDA received to remove ``canned'' from
the name of the fish category to account for other package types, the
Department clarifies that Sec. 246.10(e)(12), table 4 outlines minimum
requirements and specifications for canned fish and defines that
``canned'' fish refers to processed food items in cans or other shelf-
stable containers such as jars or pouches, which serves to denote that
fresh and frozen fish are not WIC-eligible items.

I. Legumes and Eggs

This final rule requires authorizing both dried and canned legumes;
requires substituting legumes and peanut butter for eggs in certain
situations; and provides the option to substitute tofu for eggs as
proposed. This rule will also provide the option for State agencies to
authorize nut and seed butters as a modification to the proposed rule.
The changes allow participants (except infants) to substitute the
following for one dozen eggs to accommodate special dietary needs,
cultural practices, and personal preferences:

<bullet> 1 pound dry or 64 ounces canned legumes
<bullet> 18 ounces peanut butter
<bullet> 1 pound tofu (as State agency option)
<bullet> 18 ounces of nut or seed butter (as State agency option)
1. Require Both Dried and Canned Legumes (Sec. 246.10(e)(10) Through
(12), Tables 2 Through 4)
This final rule codifies the requirement for WIC State agencies to
authorize both dried and canned legumes as summarized in the 2022
proposed rule. Prior to this rulemaking, regulations only required
dried legumes

[[Page 28508]]

and State agencies had the option to allow canned legumes.
Commenters expressed broad support for this change to increase
flexibility and choice for participants, specifically citing the time-
saving benefits of canned legumes, flexibility for participants lacking
knowledge or equipment to prepare dried legumes, and potential
increases in redemption rates. The Department agrees that this change
will reduce a potential barrier to preparing and consuming legumes for
participants who are unable to prepare dried legumes.
Among comments were requests to allow frozen unflavored legumes and
small amounts of added sugars in canned legumes, reasoning that some
canning processes require sugar to maintain the quality and structure
of the food. USDA currently allows small amounts of added sugar to
canned legumes for processing. The Department clarifies that WIC State
agencies will retain their current authority to elect to authorize only
low/lower sodium canned varieties. Regarding adding frozen legumes to
the list of authorized legumes, currently, frozen legumes can be
purchased with the CVV. The Department will explore the feasibility of
adding frozen legumes to the legumes category for consideration in
future rulemaking.
USDA did not receive any comments in opposition, though a few
commenters noted the potential need for MIS changes. The Department
addresses this concern for all categories of food in section V.
Implementation.
2. Require Authorization of Legumes and Peanut Butter as Substitutes
for Eggs and Allow State Agencies To Choose To Authorize Tofu To
Substitute for Eggs (Sec. 246.10(e)(10) Through (12), Tables 2 Through
4)
This final rule codifies the requirement for WIC State agencies to
allow participants to substitute legumes and peanut butter for eggs and
the option for WIC State agencies to authorize tofu as a substitute for
eggs as summarized in the 2022 proposed rule.
Numerous commenters, including several WIC State agencies,
expressed support for this provision citing a greater variety to
accommodate special dietary needs, cultural practices, or personal
preferences, as outlined in the 2022 proposed rule. In conjunction with
this provision, the Department requested comment on the impact of
requiring WIC State agencies to authorize tofu as an egg substitution.
Some commenters expressed concern with the substitution of tofu for
eggs, stating that eggs are high-protein, low-cost, and a better
nutrition source than tofu. While the Department agrees that eggs are a
high-protein, low-cost food, it believes the proposed substitutions are
appropriate for those who cannot or choose not to eat eggs due to
allergies or food preferences. As noted in the 2022 proposed rule,
allowing tofu as a substitute for eggs provides participants with a
source of iron and choline when eggs, legumes, and peanut butter are
not acceptable food choices. However, the Department appreciates the
comment from a WIC State agency expressing concern that tofu may not be
readily accessible and clarifies that while legumes and peanut butter
must be offered to participants as egg substitutions, authorizing tofu
as a substitute for eggs is a WIC State agency option. A few commenters
expressed concerns related to implementation in MIS and point of sale
systems. The Department addresses MIS concerns for all categories of
section V. Implementation.
3. Allow WIC State Agencies the Option To Authorize Nut and Seed
Butters as a Substitute for Peanut Butter (Sec. 246.10(e)(10) Through
(12), Tables 2 Through 4)
This final rule codifies the WIC State agency option to authorize
nut and seed butters as a substitute for peanut butter based on public
comment as requested in the 2022 proposed rule. While NASEM did not
recommend alternative nut and seed butter as substitutions, the
Department recognizes nut and seed butters are included in a healthy
dietary pattern as recommended by the DGA and requested public comment
on allowing these products as a peanut butter or legume substitution
option to further accommodate participants with food allergies. The
Department specifically requested comments on the commercial
availability of nut and seed butters that are nutritionally comparable
to peanut butter/legumes in terms of specific nutrients (e.g., protein,
iron).
Commenters overwhelmingly supported allowing nut and seed butters
as substitute for peanut butter, stating that many nut and seed butters
could be nutritionally equivalent to peanut butter for protein, iron,
choline, and fiber. They also discussed the prevalence and severity of
peanut allergies and the importance of WIC food packages providing
foods nutritionally equivalent to peanut butter.
The Department recognizes allergies to peanuts and other tree nuts
as being among the most common food allergies in children in the United
States. In USDA's School Meal Programs, schools must provide meal
modifications for participants with disabilities, which may include
providing substitutions for students with peanut or tree nut allergies.
This requirement for the School Meal Programs and allowing nut and seed
butters as a substitute to peanut butter as a WIC State agency option,
both support access for participants with food allergies. Since peanut
butter serves as a source of iron--a priority nutrient NASEM identified
for WIC participants and a DGA nutrient of public health concern for
women who are pregnant--in the WIC food packages, this final rule
allows WIC State agencies the option to authorize nut and seed butters
that provide a comparable nutritive value to peanut butter (i.e.,
protein and iron). This substitution will be extended to participants
through individual tailoring of the WIC food packages to accommodate
special dietary needs, cultural practices, or personal preferences.
As individuals who are allergic to peanuts may also be allergic to
tree nuts, the Department encourages WIC State agencies to consider
authorizing a suitable option (i.e., at least one seed butter) for
these participants. The Department does not expect this change to
result in a meaningful cost impact at the National level, as discussed
in the accompanying Regulatory Impact Analysis. WIC State agencies
should take a measured approach to product selection, which considers
cost-containment policies and practices, when establishing their WIC
authorized food list.

J. Maximum Monthly Allowances (MMA) (Sec. Sec. 246.10(b)(1)(iii),
(b)(2)(i), and (b)(2)(ii)(A); 246.11(a)(1))

This final rule codifies the option for WIC State agencies to
authorize additional product package sizes that provide less than the
full MMA as summarized in the 2022 proposed rule. WIC State agencies
are still required to make available the full MMA amounts to
participants (i.e., at least one package size, or a combination of
sizes, must add up to the full MMA for each food in each of the WIC
food packages). This final rule also codifies that, in instances where
multiple household members are receiving the same food, WIC State
agencies may authorize package sizes that exceed the MMA for each
individual WIC food package (i.e., aggregate WIC benefits) provided the
amount does not exceed the total of the combined MMA for the household.
Foods on a WIC State agency's APL must continue to meet the needs of
each individual WIC food package prescription.

[[Page 28509]]

Many commenters, including WIC State agencies, expressed general
support, stating that providing greater package size flexibility
reduces barriers to WIC shopping and increases options for
participants; and more options save time and transportation costs for
participants by reducing the need to shop at multiple stores and/or
make return trips, particularly for those in rural and/or Tribal areas;
reduce barriers to benefit redemption and WIC participation; and could
ease burdens for small vendors who have expressed difficulty stocking
the currently required package sizes. One commenter supported the
change and noted participant education would be critical to show that
redeeming a certain size may prevent the redemption of full benefits.
In requesting comments on this added WIC State agency flexibility,
the Department also requested public comment on requiring State
agencies to authorize both package sizes that equal or add up to the
MMA (to ensure participants have a pathway to receiving the full food
benefits to which program participation entitles them) and packages
sizes that do not (to ensure greater variety and choice). Some
commenters raised concerns with such a requirement, noting that
implementation would require burdensome technical efforts or that the
flexibility in approving package sizes could increase the APL size and
potentially make it unmanageable. However, a few commenters requested
that USDA require WIC State agencies to approve varying food package
sizes to create distribution and retail efficiencies in addition to
participant flexibility and choice.
The Department acknowledges the administrative burden of requiring
WIC State agencies to authorize both package sizes that equal or add up
to the MMA and packages sizes that do not for each food category, thus
retained the latter as a WIC State agency option in this final rule.
WIC State agencies wishing to exercise this option may do so at a rate
reasonable to retain a manageable APL size and, as an option, are not
required to do so by the implementation date for required provisions.
To meet participants' needs, the Department encourages WIC State
agencies to provide as much variety and choice as possible for as many
food categories as possible, to the extent that is administratively and
financially feasible given cost containment measures. Additionally, the
Department agrees with commenters who noted the importance of education
to ensure participants receive the greatest benefit from their WIC food
package and reminds WIC State agencies of this requirement as outlined
in Sec. 246.10(b)(2)(ii)(A).

IV. Miscellaneous Related Revisions and Editorial Corrections

This final rule updates the definition of individual with
disabilities, adds breast pumps as a WIC benefit and corresponding
participant violation provisions, clarifies the definition of WIC-
eligible nutritionals, adds clarifying language to nutrition tailoring,
updates the base year for the annual inflation adjustment to the CVV
amounts, and makes conforming revisions and editorial corrections.

A. Definition of Individual With Disabilities (Sec. 246.2)

This final rule codifies an update to the definition of disability
as summarized in the 2022 proposed rule: the term disability means,
with respect to an individual, a physical or mental impairment that
substantially limits one or more of the major life activities of such
individual, a record of such an impairment, or being regarded as having
such an impairment as described in 28 CFR 35.108.
Commenters were in broad support of this provision and no
commenters opposed.

B. Breast Pumps as a Program Benefit (Sec. 246.2, 246.7(j)(10), and
246.16(u)(2)(i)))

This final rule codifies including breast pumps as a WIC benefit
and adds reference to the sale or offer to sell breast pumps to the
definition of participant violation (Sec. 246.2) as summarized in the
2022 proposed rule. It also codifies a conforming provision to ensure
that every WIC applicant, parent, or caretaker is informed that selling
or offering to sell WIC benefits is a participant violation and
increases the dollar threshold for disqualification from $100 to
$1,000. This update means that whenever a WIC State agency assesses a
claim of $1,000 or more, assesses a claim for dual participation, or
assesses a second or subsequent claim of any amount, the WIC State
agency must disqualify the participant for one year.
All comments on this provision generally supported the change.
Several commenters, including WIC State agencies, expressed support for
the dollar threshold, while some commenters requested adjustments to
the threshold to a lower amount, such as $500, to allow WIC State
agencies to act sooner to address violations. A WIC State agency added
that the agency rarely encounters participants who are selling or
offering breast pumps, but instead deals with many participants who
fail to return the WIC-owned pump. The Department supports WIC State
and local agencies in implementing policies and procedures to retrieve
breast pumps, without the threat of disqualification, before the dollar
threshold is reached.

C. WIC-Eligible Nutritionals (Sec. 246.2)

This final rule codifies clarifying language to the definition of
WIC-eligible nutritionals, which are enteral products specifically
formulated to provide nutritional support for those with qualifying
conditions (see Sec. 246.2 for full definition), as summarized in the
2022 proposed rule, to convey the intent that homemade formulas and
manufactured products in the marketplace that appear to be blenderized
foods (i.e., conventional foods liquified in a blender) do not meet
WIC-eligible nutritionals requirements.
A few commenters, including WIC State agencies, supported the
updated definition and added it would clarify which foods qualify and
would better enable WIC State agencies to enforce which products can be
categorized as WIC-eligible nutritionals. A few commenters, including
WIC State agencies, urged USDA to continue to include commercially
blenderized tube feedings in the definition, stating that commercially
blenderized tube feedings meet the definition of a WIC-eligible
nutritional, are nutritionally complete, intended for use under medical
supervision, and are not equivalent to manufactured blenderized
conventional foods. They also requested guidance regarding manufactured
products that appear to be blenderized as they have seen an increase in
requests. The Department clarifies that commercially blenderized
medical foods that meet the requirements of the definition will
continue to be eligible for WIC. No commenters opposed.

D. Nutrition Tailoring (Sec. 246.10(c))

This final rule codifies adding clarifying language to nutrition
tailoring that exists in current policy and language to convey that
nutrition tailoring also involves making substitutions to the types and
forms of foods to accommodate an individual participant's food allergy
or intolerance, cultural preferences, and medical or special dietary
needs, as well as situations where the participant refuses or cannot
use the item, as summarized in the 2022 proposed rule. This final rule
also codifies the clarification that offering a participant
substitution in

[[Page 28510]]

accordance with WIC State agency policy and Federal regulations is the
first step before eliminating or reducing foods and must be based on
their nutrition assessment.
Commenters, including WIC State and local agencies, were supportive
of this provision, stating that the revisions will help accommodate
participants with food allergies, cultural preferences, and dietary
needs, and promote safety for participants with food allergies. Some
commenters urged USDA to ensure product substitutions are determined in
advance and not in retail settings and requested to exclude the
required documentation needed when a participant requests a change to a
food package based on preference.
The Department clarifies that Federal regulations at Sec.
246.10(d)(1) do not require medical documentation to issue food
substitutions outside of Food Package III (except for infant formula).
The WIC competent professional authority provides nutrition education
that addresses nutrition risks identified with diets that restrict
certain foods and/or food groups, and WIC State agencies are encouraged
to continue ongoing communication between WIC and healthcare providers
as necessary. Regarding the request to determine product substitutions
in advance and not in retail settings, WIC State agencies are
responsible for determining the brands, types, and forms of foods
authorized, including the substitution options they elect to authorize.
In some situations, such as tailoring a food package for a participant
with a peanut allergy, the determination to issue legumes instead of
peanut butter is made at the time the food package is issued. In other
instances, the WIC State agency may allow the participant to select
from a range of allowable options at the time of purchase at the store
for other foods, such as canned salmon or canned tuna, and selecting
brown rice, corn or wheat tortillas, or whole-grain barley based on
their preference and product availability.

E. Annual Inflation Adjustment for the Cash-Value Voucher (CVV) (Sec.
246.16(j))

This final rule codifies updating the base year (from 2008 to 2022)
for the annual inflation adjustment to the CVV amounts as summarized in
the 2022 proposed rule.
Most commenters expressed support for this provision, stating that
it helps to offset increased food costs, ensures that participants
obtain the recommended intake of fruits and vegetables, and allows for
the continuity of the benefit. A few commenters stated that the
rounding procedure as described in Sec. 246.16(j)(5) should be revised
so that the inflation adjustment is rounded up to the nearest multiple
of $1 (not rounded down to the next multiple of $1 as is currently in
regulation). The approach selected by FNS aligns with the one used in
the Supplemental Nutrition Assistance Program (SNAP), which also rounds
inflation adjustments down to the next multiple of $1 (7 CFR
273.10(e)(4)(ii)), as well as the National School Lunch Program's
national average payment rates, which are rounded down to the nearest
cent (7 CFR 210.4(b)). The 2022 proposed rule did not request public
comment or make any changes to the current rounding procedures.
Therefore, the Department is not making this change in this final rule.
One commenter opposed, stating that the CVV amounts should not be
increased for inflation for at least five years since the 2023 amounts
should be sufficient for now. The Department disagrees with this
suggestion since unadjusted CVV amounts would over time decrease the
amounts of fruits and vegetables participants could purchase, thereby
conflicting with NASEM's recommendation to provide approximately half
of the recommended daily amounts of fruits and vegetables for adults
and children.

F. Conforming Revisions and Editorial Corrections (Sec. 246.10)

This final rule codifies conforming revisions and corrections to
typographical and grammatical errors as well as improvements for
conciseness and clarity of final provisions. The changes will have no
substantive effect on the public.

V. Implementation

The Department initially proposed WIC State agencies would have 18
months from publication of the final rule to implement the revisions to
the food packages and all other provisions in the rule. Additionally,
the Department proposed that once the WIC State agency began issuing
each new food package, it be done on a State agency-wide basis. The
Department requested comments on the administrative burden associated
with both proposed implementation components.
Commenters generally highlighted time, limited resources, and
extensive system changes needed to successfully implement the
provisions in this final rule. These changes included MIS changes,
administrative time associated with the identification and review of
new products, changes to shopping applications, participant education,
work with retailers, and food product development. While WIC State
agencies need to ensure their MIS is flexible to adapt to this and
other changes effected through this rulemaking, the Department
acknowledges that at any given time WIC State agencies are at different
stages of updating their systems. To allow for the MIS changes this
final rule requires, the Department extended the implementation
timeframe for this final rule.
After evaluating comments, the Department is providing a 24-month
implementation timeline for all provisions, with two exceptions: a 60-
day implementation timeline for the revised CVV amounts for all
children and women participants, and a 36-month timeline for
implementing the Vitamin D specification in yogurt. WIC State agencies
are allowed and encouraged to implement the provisions earlier than the
24-month timeline; however, they must issue food benefits based on
either the new food package in its entirety or maintain the current
food package. For example, a WIC State agency may not add fish to the
current foods and quantities available under the children's food
package and make no other changes. A WIC State agency may, however,
phase-in the new WIC food packages on a participant category basis. WIC
State agencies may also implement any provisions expanding substitution
options (e.g., additional whole grain options) at any time, including
before completing the phasing in of the new food packages. To minimize
participant and vendor confusion, once the WIC State agency begins
issuing the new WIC food packages, it must be done on a State agency-
wide basis.
With near unanimous support of a CVV increase in public comments in
response to the proposed rule, implementation of the final CVV amounts
60 days after publication of the final rule promotes timely access to
the scientifically recommended amounts of fruits and vegetables. In
addition, WIC State agencies need less time to update their MIS to
issue the new amounts.
Among the commenters who opposed or expressed concern for the
proposed vitamin D specification for yogurt, the primary concern was
marketplace availability followed by a concern about manufacturers'
willingness to modify products. Several commenters expressed their
support for implementing a vitamin D specification for WIC-eligible
yogurts but requested USDA provide a longer timeframe for this
provision to allow for product reformulation. Based on information
regarding the lifecycle for reformulated and new products, USDA agrees
that

[[Page 28511]]

extending implementation of this provision to 36 months would allow
sufficient time to reformulate products as well as time for WIC State
agencies to review and select products and work with vendors.
The implementation dates are as follows:
<bullet> WIC State agencies must implement the provision in tables
2 and 3 to 7 CFR 246.10(e)(10) and (11) increasing the cash value
voucher, adjusted for inflation, for children to $26, pregnant and
postpartum women to $47, and partial and fully breastfeeding women to
$52 on June 17, 2024.
<bullet> WIC State agencies must implement the provision in table 4
to 7 CFR 246.10(e)(12) that establishes a minimum vitamin D requirement
for yogurt no later than April 19, 2027.
<bullet> WIC State agencies must implement all other required
provisions of this rule no later than April 20, 2026.

Procedural Matters

Executive Order 12866, 13563, and 14094

Executive Orders 12866 and 13563 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility. Executive Order 14094 of April 6, 2023, focuses on
modernizing regulatory review and updates the definition of a
significant regulation.
This final rule has been determined to be significant under section
3(f)(1) of Executive Order (E.O.) 12866, as amended by E.O. 14094, and
was reviewed by the Office of Management and Budget (OMB) in
conformance with Executive Order 12866.

Regulatory Impact Analysis

As required for all rules that have been designated as Significant
by the Office of Management and Budget, a Regulatory Impact Analysis
(RIA) was developed for this final rule. It follows this rule as
appendix A. The following summarizes the conclusions of the regulatory
impact analysis:
Need for Action
Section 17 of the Child Nutrition Act mandates that the United
States Department of Agriculture (USDA) conduct a comprehensive
scientific review of the WIC food packages at least every ten years and
revise the foods available, as needed, to reflect nutritional science,
public health concerns, and cultural eating patterns (42 U.S.C.
1786(f)(11)(C)). This rule makes changes that are intended to provide
WIC participants with a wider variety of foods that align with the
latest nutritional science; provide WIC State agencies with greater
flexibility to prescribe food packages that accommodate participants'
personal and cultural food preferences and special dietary needs;
provide more equitable access to supplemental foods; and better promote
and support individual breastfeeding goals of participants to help
establish successful long-term breastfeeding.
Benefits
The changes to the WIC food packages enacted under this rule are
intended to provide WIC participants with a wider variety of foods that
align with the latest nutritional science, provide WIC State agencies
with greater flexibility in prescribing food packages to accommodate
participant personal and cultural food preferences and special dietary
needs, and better promote and support the establishment of successful
long-term breastfeeding.
The increases in the value of the cash-value voucher (CVV) for
fruits and vegetables, increases in canned fish, and changes to whole
grain requirements will better align the WIC food packages with the
2020-2025 DGA. The DGA identified average daily food group intakes of
fruits, vegetables, seafood, and whole grains as falling below the
recommended intake ranges for adults and children.\24\ Increased
consumption of these foods is expected to increase intakes of key
nutrients, including dietary fiber, potassium, vitamin D, vitamin A,
vitamin C, folate, and polyunsaturated fatty acids. Dietary fiber,
potassium, and vitamin D, considered nutrients of public health concern
in the general U.S. population, are currently also under-consumed by
WIC participants.25 26
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\24\ Gleason, S., Hansen, D., & Wakar, B. (2021). Indicators of
diet quality, nutrition, and health for Americans by program
participation status, 2011-2016: WIC report. Prepared by Insight
Policy Research, Contract No. GS-10F-0136X. Alexandria, VA: U.S.
Department of Agriculture, Food and Nutrition Service, Office of
Policy Support, Project Officer: Michael Burke. <a href="http://www.fns.usda.gov/research-and-analysis">www.fns.usda.gov/research-and-analysis</a>.
\25\ Ibid.
\26\ Borger, C., Zimmerman, T., Vericker, T., et al. (2020). WIC
Infant and Toddler Feeding Practices Study 2: Fourth Year Report.
Prepared by Westat, Contract No. AG-3198-K-15-0033 and AG-3198-K-15-
0050. Alexandria, VA: U.S. Department of Agriculture, Food and
Nutrition Service, Office of Policy Support, Project Officer:
Courtney Paolicelli. Available online at: <a href="http://www.fns.usda.gov/research-and-analysis">www.fns.usda.gov/research-and-analysis</a>.
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NASEM's analysis estimates that in order to meet half of the
recommended intakes of fruits and vegetables, WIC participants would
need to spend $24, $43, or $47 (adjusted for inflation to FY 2022),
depending on participant category, to meet 50 percent of the
recommended intakes for fruits and vegetables. This suggests that the
current regulatory CVV levels (which would have been $9 for children
and $11 for pregnant, postpartum, and breastfeeding individuals in FY
2022 had Congress not temporarily enacted higher levels through annual
appropriations that aligned with the NASEM recommendations) only
provide enough for around 19 percent and 12 percent of recommended
fruit and vegetable intakes for these groups, respectively. By
increasing the value of the CVV to the levels proposed by NASEM to meet
50 percent of the recommended fruit and vegetable intakes, the rule is
expected to significantly increase fruit and vegetable purchases and
consumption among WIC participants.
While it is difficult to quantify the full extent of projected
benefits associated with the revisions to the WIC food packages, USDA's
and NASEM's analyses find that the revisions better align the WIC food
packages with the latest nutrition recommendations in the DGA and
accordingly will support participants in achieving healthy dietary
patterns. The 2020-2025 DGA highlights the importance of a healthy
dietary pattern to help achieve a healthy body weight and reduce the
risk of chronic disease. The DGA also emphasizes the importance of
exposing young children to nutrient-dense foods at an early age to
support the establishment of healthy dietary patterns. By supporting
healthy dietary patterns among pregnant women, the changes to the WIC
food packages will advance the Program's capacity to address nutrition-
related causes of maternal and infant morbidity and mortality. The
Department finds that this rule presents an effective approach to
supporting pregnant participants and families with infants and young
children in achieving balanced, healthy diets and broadly promoting
public health.
Costs
The Department estimates that the rule to revise regulations
governing the WIC food packages would result in a net

[[Page 28512]]

increase in Federal WIC spending of $4.9 billion, in the form of
Federal transfer payments for increased WIC food expenditures, over
five years from FY 2025 through FY 2029. This increase in Federal WIC
food expenditures is driven by the increase in the CVV, which is
estimated to increase WIC food expenditures by $5.6 billion over five
years when compared to current CVV levels as outlined in 7 CFR 246.10.
However, the CVV levels in this rule were enacted on a temporary basis
for FY 2022, FY 2023, and FY 2024. As a result, when compared to the FY
2022, FY 2023, and FY 2024 WIC food packages, the CVV increase made
permanent in this rule would not impact Federal WIC expenditures. With
the CVV impact zeroed out of the overall cost estimate for the rule,
the remaining provisions are expected to result in a net decrease in
Federal WIC food spending of $617 million over five years, or about a
2.3 percent reduction in total food expenditures when compared to the
food packages as currently enacted in FY 2023. These estimates are
summarized at the food category level in the RIA in appendix A at the
end of this document, where all changes under a given food category
(e.g., changes to quantity issued, expanded substitution options, and
flexibility in package sizes) are considered for their collective
impacts on projected quantities redeemed and unit costs. Based on the
implementation timeline described above, these cost estimates assume
that the CVV increase will be fully in effect in FY 2025 and that the
other provisions will be fully in effect beginning in FY 2026.
As described above, the increase in value of the CVV accounts for
most of the increased Federal spending, adding around $5.6 billion in
costs over five years. This estimate assumes that the redemption rate
of the increased CVV will continue at 2020 redemption levels (71.6
percent) and accounts for annual inflation adjustments. The addition of
canned fish to most food packages is estimated to add around $213
million in additional spending over five years. The increase to the
amounts of jarred infant fruits and vegetables that can be substituted
for CVV and the expansion of the allowable age range to substitute CVV
for jarred fruits and vegetables are estimated to increase redemptions
for these items, adding $119 million in additional spending over five
years, despite the reduction in the quantity of jarred fruits and
vegetables issued to fully breastfed infants. Requiring all State
agencies to authorize both dry and canned legumes is estimated to
increase costs by $16 million over five years as some participants
shift from purchasing dry legumes to more costly canned legumes.
The remaining provisions will either result in net savings at the
food category level or are not estimated to have a significant impact
on costs. Although the expanded substitution options for milk and juice
are expected to increase redemption rates for these food categories,
the reductions to the maximum monthly allowances issued are still
expected to result in a net savings of $118 million for milk and $640
million for juice over five years. The estimated savings associated
with the reduction in the allowances for juice offset part of the costs
of the increase to the CVV--encouraging greater consumption of whole
fruits and vegetables as emphasized in the DGA. While the rule will
increase the amount of infant formula allowed in the first month for
partially breastfed infants, this change is intended to support
continued breastfeeding and is estimated to result in a shift of 5
percent of infant mother dyads from fully formula feeding food packages
to partially breastfeeding food packages, which would ultimately lead
to a net savings of $34 million on infant formula over five years. The
changes to infant meats, infant cereals, whole wheat/whole grains,
breakfast cereal, and cheese are also expected to result in cost
savings as summarized in Table 2d of the RIA in appendix A at the end
of this document.
In addition to the above impact on Federal transfer payments, the
Department also estimates that WIC State agencies and local agencies
will incur an increase in administrative burden associated with
administering and explaining the changes to participants. This
additional administrative burden is expected to account for about $179
million in State agency and local agency labor costs over five years
between FY 2025 and FY 2029. These administrative costs are considered
allowable expenses for State agencies under their annually awarded
Nutrition Services and Administration (NSA) grants. In general, the
Department expects that State agencies will be able to absorb the costs
associated with implementing the provisions under this rule with
current NSA funds.

Regulatory Flexibility Act

The Regulatory Flexibility Act (5 U.S.C. 601-612) requires agencies
to analyze the impact of rulemaking on small entities and consider
alternatives that would minimize any significant impacts on a
substantial number of small entities. Pursuant to that review, it has
been certified that this rule will not have a significant impact on a
substantial number of small entities. This final rule will not have a
significant adverse impact on small entities in the Special
Supplemental Nutrition Program for Women, Infants, and Children; the
impact is not significant as it allows for greater options and
flexibilities within approved food lists for State and local agencies
to offer participants. State agencies are already required on an annual
basis to review their approved foods lists.
Factual Basis: The provisions of this final rule will apply to
small local agencies operating the Special Supplemental Nutrition
Program for Women, Infants and Children and to State agency staff who
must monitor local agencies in remote locations. These entities meet
the definition of ``small governmental jurisdiction'' and ``small
entity'' in the Regulatory Flexibility Act. These entities will not be
negatively impacted by the changes and options in this rule.
As discussed in the Regulatory Impact Analysis (RIA), this rule is
not expected to change the administrative burden on most vendors. There
may be a small one-time burden on small vendors to stock three
varieties of vegetables instead of two, but the overall burden on
vendors will remain substantially unchanged. Requiring vendors to stock
at least three vegetables serves to improve access and equity to
nutritious foods for WIC participants by providing a greater variety of
vegetables, particularly important for those living in locations where
it is difficult to access vegetables.
The Department does not routinely track data necessary to determine
how WIC benefit redemptions vary by most vendor characteristics,
including indicators for whether the store is a small business or
independent grocer. The Department estimates that due to the one-time
stocking burden, approximately 150 vendors may decide to discontinue
participation in the Program out of approximately 40,000 total vendors,
or approximately one to two vendors per State agency, on average. This
estimate assumes that, among vendors with WIC redemptions in the bottom
10 percent nationwide, those such as small convenience stores that
offer limited grocery items may have the greatest difficulty stocking
one additional vegetable. Comments from the public on this assumption
were requested in the proposed RIA and none were received.

[[Page 28513]]

Due to the unavailability of data on vendor size, the Department
does not have estimated costs for small vendors to offer a third
variety of vegetables. However, based on the estimated number of small
vendors that could be impacted, this rule will not have a significant
economic impact on a substantial number of small entities. The updated
stocking requirement will require vendors to carry one additional form
of vegetable and will allow vendors to meet this requirement by
stocking fresh, canned, or frozen vegetables, depending on their
policies. Given the flexibility in this requirement, the Department
anticipates minimum negative impact on vendors and, in the long-term,
and expects that the administrative burden on vendors will remain
substantially unchanged.

Congressional Review Act

Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.),
the Office of Information and Regulatory Affairs designated this rule
as a ``major rule'', as defined by 5 U.S.C. 804(2).

Unfunded Mandates Reform Act

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local and Tribal
governments, and the private sector. Under section 202 of the UMRA, the
Department generally must prepare a written statement, including a cost
benefit analysis, for proposed and final rules with ``Federal
mandates'' that may result in expenditures by State, local or Tribal
governments, in the aggregate, or the private sector, of $146 million
or more (when adjusted for inflation; gross domestic product (GDP)
deflator source: Table 1.1.9 at <a href="https://www.bea.gov/iTable">https://www.bea.gov/iTable</a>) in any one
year. When such a statement is needed for a rule, section 205 of the
UMRA generally requires the Department to identify and consider a
reasonable number of regulatory alternatives and adopt the most cost
effective or least burdensome alternative that achieves the objectives
of the rule.
This final rule does not contain Federal mandates (under the
regulatory provisions of Title II of the UMRA) for State, local, and
Tribal governments, or the private sector of $146 million or more in
any one year. Thus, the rule is not subject to the requirements of
sections 202 and 205 of the UMRA.

Executive Order 12372

The Special Supplemental Nutrition Program for Women, Infants and
Children (WIC) is listed in the Catalog of Federal Domestic Assistance
under Number 10.557 and is subject to Executive Order 12372, which
requires intergovernmental consultation with State and local officials
(see 2 CFR chapter IV). Since WIC is State-administered, USDA's FNS
Regional Offices have formal and informal discussions with State and
local officials, including representatives of Indian Tribal
Organizations, on an ongoing basis regarding program requirements and
operations. This provides USDA with the opportunity to

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