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Rule2024-08098

Child Nutrition Programs: Meal Patterns Consistent With the 2020-2025 Dietary Guidelines for Americans

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Published

April 25, 2024

Effective

July 1, 2024

Issuing agencies

Agriculture DepartmentFood and Nutrition Service

Abstract

This rulemaking finalizes long-term school nutrition requirements based on the goals of the Dietary Guidelines for Americans, 2020-2025, robust stakeholder input, and lessons learned from prior rulemakings. Notably, this rulemaking gradually phases in added sugars limits for the school lunch and breakfast programs and in the Child and Adult Care Food Program, updates total sugars limits for breakfast cereals and yogurt to added sugars limits. As a reflection of feedback from stakeholders, this final rule implements a single sodium reduction in the school lunch and breakfast programs and commits to studying the potential associations between sodium reduction and student participation in the school lunch and breakfast programs. This rulemaking addresses a variety of other school meal requirements, including establishing long-term milk and whole grain requirements. Finally, this rule includes provisions that strengthen Buy American requirements. While this rulemaking takes effect school year 2024-2025, the Department is gradually phasing in required changes over time. Program operators are not required to make any changes to their menus as a result of this rulemaking until school year 2025-2026 at the earliest.

Full Text

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[Federal Register Volume 89, Number 81 (Thursday, April 25, 2024)]
[Rules and Regulations]
[Pages 31962-32120]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-08098]

[[Page 31961]]

Vol. 89

Thursday,

No. 81

April 25, 2024

Part III

Department of Agriculture

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Food and Nutrition Service

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7 CFR Parts 210, 215, 220, et al.

Child Nutrition Programs: Meal Patterns Consistent With the 2020-2025
Dietary Guidelines for Americans; Final Rule

Federal Register / Vol. 89 , No. 81 / Thursday, April 25, 2024 /
Rules and Regulations

[[Page 31962]]

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DEPARTMENT OF AGRICULTURE

Food and Nutrition Service

7 CFR Parts 210, 215, 220, 225, and 226

[FNS-2022-0043]
RIN 0584-AE88

Child Nutrition Programs: Meal Patterns Consistent With the 2020-
2025 Dietary Guidelines for Americans

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

ACTION: Final rule.

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SUMMARY: This rulemaking finalizes long-term school nutrition
requirements based on the goals of the Dietary Guidelines for
Americans, 2020-2025, robust stakeholder input, and lessons learned
from prior rulemakings. Notably, this rulemaking gradually phases in
added sugars limits for the school lunch and breakfast programs and in
the Child and Adult Care Food Program, updates total sugars limits for
breakfast cereals and yogurt to added sugars limits. As a reflection of
feedback from stakeholders, this final rule implements a single sodium
reduction in the school lunch and breakfast programs and commits to
studying the potential associations between sodium reduction and
student participation in the school lunch and breakfast programs. This
rulemaking addresses a variety of other school meal requirements,
including establishing long-term milk and whole grain requirements.
Finally, this rule includes provisions that strengthen Buy American
requirements. While this rulemaking takes effect school year 2024-2025,
the Department is gradually phasing in required changes over time.
Program operators are not required to make any changes to their menus
as a result of this rulemaking until school year 2025-2026 at the
earliest.

DATES: This final rule is effective July 1, 2024. Phased-in
implementation dates for required changes are addressed in the
SUPPLEMENTARY INFORMATION section of this rule.

ADDRESSES: Docket: Go to the Federal eRulemaking Portal at <a href="https://www.regulations.gov">https://www.regulations.gov</a> for access to the rulemaking docket, including any
background documents.

FOR FURTHER INFORMATION CONTACT: Andrea Farmer, Director, School Meals
Policy Division--4th floor, Food and Nutrition Service, 1320 Braddock
Place, Alexandria, VA 22314; telephone: 703-305-2054.

SUPPLEMENTARY INFORMATION:

Table of Contents

1. Background
Phased-In Implementation
USDA Support for Child Nutrition Programs
Federal Strategies To Reduce Sodium and Added Sugars in the Food
Supply
Overview of Public Comments
2. Added Sugars
3. Milk
3A: Flavored Milk
3B: Fluid Milk Substitutes: Responses to Request for Input
3C: Fluid Milk Substitutes: Nutrient Requirements
4. Whole Grains
5. Sodium
6. Meats/Meat Alternates at Breakfast
7. Substituting Vegetables for Grains in Tribal Communities
8. Traditional Indigenous Foods
9. Afterschool Snacks
10. Substituting Vegetables for Fruits at Breakfast
11. Nuts and Seeds
12. Beans, Peas, and Lentils at Lunch
13. Competitive Foods: Bean Dip Exemption
14. Meal Modifications
15. Clarification on Potable Water Requirements
16. Synthetic Trans Fats
17. Professional Standards: Hiring Exception for Medium and Large
Local Educational Agencies
18. Buy American
18A: Limited Exceptions to the Buy American Requirement
18B: Exception Documentation and Reporting Requirements
18C: Procurement Procedures
18D: Definition of ``Substantially''
18E: Clarification of Requirements for Harvested Farmed and Wild
Caught Fish
19. Geographic Preference
20. Miscellaneous Changes
21. Summary of Changes
21A: Descriptive Summary of Changes
21B: Table of Changes by Program
22. Procedural Matters
Regulatory Impact Analysis

Table of Abbreviations

AFHK--Action for Healthy Kids
ADA--Americans with Disabilities Act
CACFP--Child and Adult Care Food Program
CNA--Child Nutrition Act
CN-OPS--Child Nutrition Operations Study
FAR--Federal Acquisitions Regulations
FDA--U.S. Food and Drug Administration
FNS--Food and Nutrition Service
HEI--Healthy Eating Index
HMI--Healthy Meals Incentives
ICN--Institute of Child Nutrition
NASEM--National Academies of Science, Engineering, and Medicine
NSLA--National School Lunch Act
NSLP--National School Lunch Program
SBP--School Breakfast Program
SFSP--Summer Food Service Program
SNAP--Supplemental Nutrition Assistance Program
SMP--Special Milk Program
SY--School Year
USDA--U.S. Department of Agriculture

Section 1: Background

On February 7, 2023, the U.S. Department of Agriculture (USDA)
published Child Nutrition Programs: Revisions to Meal Patterns
Consistent With the 2020 Dietary Guidelines for Americans \1\ (``2023
proposed rule'') to update the school meal pattern requirements based
on a comprehensive review of the Dietary Guidelines for Americans,
2020-2025 (Dietary Guidelines), robust stakeholder input on the school
meal patterns, and lessons learned from prior rulemakings.\2\ USDA is
finalizing that proposed rule, with some modifications based on public
input. This final rule is the next step in an ongoing effort toward
healthier school meals that USDA and the broader school meals community
have been partnering on for well over a decade.
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\1\ Child Nutrition Programs: Revisions to Meal Patterns
Consistent With the 2020 Dietary Guidelines for Americans (88 FR
8050, February 7, 2023). Available at: <a href="https://www.federalregister.gov/documents/2023/02/07/2023-02102/child-nutrition-programs-revisions-to-meal-patterns-consistent-with-the-2020-dietary-guidelines-for">https://www.federalregister.gov/documents/2023/02/07/2023-02102/child-nutrition-programs-revisions-to-meal-patterns-consistent-with-the-2020-dietary-guidelines-for</a>.
\2\ U.S. Department of Agriculture and U.S. Department of Health
and Human Services. 2020-2025 Dietary Guidelines for Americans. 9th
Edition. December 2020. Available at: <a href="https://www.dietaryguidelines.gov/">https://www.dietaryguidelines.gov/</a>.
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Separately, on January 23, 2020, USDA published a proposed rule,
Simplifying Meal Service and Monitoring Requirements in the National
School Lunch and School Breakfast Programs (``the 2020 proposed
rule'').\3\ As noted in the 2023 proposed meal pattern rule, based on
public comment, USDA is finalizing certain meal pattern provisions from
the 2020 proposed rule in this final rule.\4\ The following sections
address rule provisions that were included in the 2020 proposed rule:
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\3\ Simplifying Meal Service and Monitoring Requirements in the
National School Lunch and School Breakfast Programs (85 FR 4094,
January 23, 2020). Available at: <a href="https://www.federalregister.gov/documents/2020/01/23/2020-00926/simplifying-meal-service-and-monitoring-requirements-in-the-national-school-lunch-and-school">https://www.federalregister.gov/documents/2020/01/23/2020-00926/simplifying-meal-service-and-monitoring-requirements-in-the-national-school-lunch-and-school</a>.
\4\ Other provisions of the 2020 proposed rule related to
program monitoring were finalized in Child Nutrition Program
Integrity (88 FR 57792, August 23, 2023). Available at: <a href="https://www.federalregister.gov/documents/2023/08/23/2023-17992/child-nutrition-program-integrity">https://www.federalregister.gov/documents/2023/08/23/2023-17992/child-nutrition-program-integrity</a>.

<bullet> Section 6: Meats/Meat Alternates at Breakfast
<bullet> Section 12: Beans, Peas, and Lentils at Lunch
<bullet> Section 14: Meal Modifications
<bullet> Section 15: Clarification on Potable Water Requirements
<bullet> Section 16: Synthetic Trans Fats

Through this rulemaking, USDA is exercising broad discretion
authorized by Congress to administer the school

[[Page 31963]]

lunch and breakfast programs and ensure meal patterns ``are consistent
with the goals of the most recent'' Dietary Guidelines.\5\ See 42
U.S.C. 1752, 1758(a)(1)(B), 1758(k)(1)(B), 1758(f)(1)(A), and
1758(a)(4)(B). Consistent with its historical position, USDA interprets
``consistent with the goals of'' the Dietary Guidelines to be a broad,
deferential phrase that requires consistency with the ultimate
objectives of Dietary Guidelines but not necessarily the adoption of
the specific consumption requirements or specific quantitative
recommendations in the Dietary Guidelines. Accordingly, through this
final rule, USDA is working to ensure an appropriate degree of
consistency between school meal patterns and the Dietary Guidelines by
considering operational feasibility and the ongoing recovery from the
impacts of COVID-19, while also ensuring schools can plan appealing
meals that encourage consumption and intake of key nutrients that are
essential for children's growth and development.
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\5\ The Dietary Guidelines, 2020-2025 provide four overarching
recommendations: (1) Follow a healthy dietary pattern at every life
stage. (2) Customize and enjoy nutrient-dense food and beverage
choices to reflect personal preferences, cultural traditions, and
budgetary considerations. (3) Focus on meeting food group needs with
nutrient-dense foods and beverages and stay within calorie limits.
(4) Limit foods and beverages higher in added sugars, saturated fat,
and sodium, and limit alcoholic beverages.
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This rulemaking updates current meal pattern requirements, which
were most recently updated in SY 2022-2023 through the final rule,
Child Nutrition Programs: Transitional Standards for Milk, Whole
Grains, and Sodium (``the transitional standards rule''). USDA intended
for the transitional standards rule to serve as a bridge, providing
immediate relief as schools returned to traditional school meal service
following extended use of COVID-19 meal pattern flexibilities. A
detailed overview of the transitional standards rule, USDA's
stakeholder engagement campaign, and other factors considered in the
proposed rule development can be found in the 2023 proposed rule
preamble.\6\ With this rule, USDA intends to further align school meal
nutrition requirements with the goals of the Dietary Guidelines, 2020-
2025. This effort is described in greater detail, as informed by public
comments on the proposed rule, throughout this preamble.
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\6\ Child Nutrition Programs: Revisions to Meal Patterns
Consistent With the 2020 Dietary Guidelines for Americans (88 FR
8050, February 7, 2023). Available at: <a href="https://www.federalregister.gov/documents/2023/02/07/2023-02102/child-nutrition-programs-revisions-to-meal-patterns-consistent-with-the-2020-dietary-guidelines-for">https://www.federalregister.gov/documents/2023/02/07/2023-02102/child-nutrition-programs-revisions-to-meal-patterns-consistent-with-the-2020-dietary-guidelines-for</a>.
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Phased-In Implementation

For most children, school meals are the healthiest meals they
consume in a day,\7\ and USDA research has found that school meals
contribute positively to the diet quality of all participating
students.\8\ However, there is still room for improvement. For example,
the Dietary Guidelines for Americans, 2020-2025 indicates that about 70
to 80 percent of school children exceed the recommended daily limit of
added sugars.\9\ Research suggests that among adolescents, certain poor
dietary behaviors--such as skipping breakfast and infrequent
consumption of fruits and vegetables--worsened during the COVID-19
pandemic.\10\ Updating the school meal patterns is one strategy to
increase healthy dietary behaviors among school children for the long
term. Many children rely on school meals for more than half of their
food each school day, so even small nutritional improvements can make a
difference.\11\
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\7\ Liu J, Micha R, Li Y, Mozaffarian D. Trends in Food Sources
and Diet Quality Among US Children and Adults, 2003-2018. JAMA.
April 12, 2021. Available at: <a href="https://jamanetwork.com/journals/jamanetworkopen/fullarticle/2778453?utm_source=For_The_Media&utm_medium=referral&utm_campaign=ftm_links&utm_term=040921">https://jamanetwork.com/journals/jamanetworkopen/fullarticle/2778453?utm_source=For_The_Media&utm_medium=referral&utm_campaign=ftm_links&utm_term=040921</a>.
\8\ ``While USDA school meals were bigger contributors to the
caloric intakes of students from less food-secure households, they
contributed positively to the diet quality of all participating
students . . . For both food-insecure and food-secure students, the
average HEI scores for non-school foods were between 55 and 57,
whereas school foods scored between 79 and 81. School foods were
particularly noteworthy as sources of fruit, dairy, and whole
grains.'' U.S. Department of Agriculture. USDA School Meals Support
Food Security and Good Nutrition. May 3, 2021. Available at: <a href="https://www.ers.usda.gov/amber-waves/2021/may/usda-school-meals-support-food-security-and-good-nutrition/">https://www.ers.usda.gov/amber-waves/2021/may/usda-school-meals-support-food-security-and-good-nutrition/</a>.
\9\ See ``Percent Exceeding Limits of Added Sugars, Saturated
Fat, and Sodium'' on pages 79, 82, and 85. U.S. Department of
Agriculture and U.S. Department of Health and Human Services. 2020-
2025 Dietary Guidelines for Americans. 9th Edition. December 2020.
Available at: <a href="https://www.dietaryguidelines.gov/">https://www.dietaryguidelines.gov/</a>.
\10\ Michael SL, Jones SE, Merlo CL, et al. Dietary and Physical
Activity Behaviors in 2021 and Changes from 2019 to 2021 Among High
School Students--Youth Risk Behavior Survey, United States, 2021.
MMWR Suppl 2023;72(Suppl-1):75-83. DOI: <a href="http://dx.doi.org/10.15585/mmwr.su7201a9">http://dx.doi.org/10.15585/mmwr.su7201a9</a>.
\11\ Karen Weber Cullen, Tzu-An Chen, The contribution of the
USDA school breakfast and lunch program meals to student daily
dietary intake, Preventive Medicine Reports. March 2017. Available
at: <a href="https://www.sciencedirect.com/science/article/pii/S2211335516301516">https://www.sciencedirect.com/science/article/pii/S2211335516301516</a>.
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At the same time, USDA understands that changes to the meal
patterns need to be gradual and predictable to give child nutrition
program operators and children time to adapt, and to allow industry
time to develop new products. This final rule responds to stakeholder
input by building in plenty of time for State agencies, school
nutrition professionals, and other program operators to successfully
implement the required changes. For example, as discussed in Section 2:
Added Sugars, USDA is gradually phasing in the product-based and weekly
limits for added sugars in the school meal programs. As discussed in
Section 5: Sodium, this final rule gives schools and manufacturers even
more time to reduce sodium compared to the proposed rule. As
recommended by numerous stakeholders, it also commits to examining
sodium reduction in school meals and assessing the potential impact of
these reductions on program operations and student participation. This
rulemaking does not make changes to the current whole grain
requirements for school meals and continues to allow schools to offer
flavored milk, subject to new added sugars limits, to all K-12
students. Although USDA considered alternatives for the whole grain and
flavored milk requirements, based on stakeholder input, USDA determined
that maintaining the current requirements would best position schools
and students for success.
Other changes in this rule simplify program regulations and provide
child nutrition program operators more flexibility to successfully plan
and prepare meals. These changes will be implemented on a quicker
timeline, as they provide optional administrative or operational
flexibilities but do not require operators to change menus or
operations. For example, this rulemaking makes it easier for schools to
offer meats/meat alternates at breakfast by removing the minimum grains
requirement. It removes the limit for nut and seed crediting at
breakfast, lunch, and supper in the child nutrition programs, making it
easier for operators to offer vegetarian meals. This rulemaking also
makes it easier for program operators to purchase local foods for the
child nutrition programs by allowing ``locally grown, raised, or
caught'' to be used as procurement specifications for unprocessed or
minimally processed food items.
Each provision of this rule, along with its implementation date, is
discussed in greater detail throughout this preamble. A chart outlining
each regulatory change and its implementation date is included in
Section 21: Summary of Changes.

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USDA Support for Child Nutrition Programs

USDA is incredibly grateful for the dedication of child nutrition
program operators who serve children healthy meals with kindness and
care. USDA understands that some program operators continue to face
high food costs and supply chain issues. The Department is committed to
continuing to provide program operators with support to help them
succeed.
USDA is making a $100 million \12\ investment in the Healthy Meals
Incentives (HMI) Initiative, which is dedicated to improving the
nutritional quality of school meals through food systems
transformation, school food authority recognition and technical
assistance, the generation and sharing of innovative ideas and tested
practices, and grants. As part of a cooperative agreement to develop
and implement USDA's HMI Initiative, Action for Healthy Kids (AFHK) has
awarded nearly $30 million in grants to 264 small and/or rural school
food authorities across 44 States and the District of Columbia. These
school food authorities will use funding to modernize their operations
and provide more nutritious meals to students. Additionally, AFHK is
offering Recognition Awards to celebrate and spotlight school food
authorities who use innovative practices, student and community
engagement activities, and other strategies to provide meals that are
consistent with the Dietary Guidelines for Americans, 2020-2025.
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\12\ U.S. Department of Agriculture. USDA Launches $100 Million
Healthy School Meals Initiative, Announces Grant Program for Rural
Schools. September 23, 2022. Available at: <a href="https://www.fns.usda.gov/news-item/fns-0010.22">https://www.fns.usda.gov/news-item/fns-0010.22</a>.
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USDA also provides support to schools through its annual Patrick
Leahy Farm to School Grant Program. These funds support a wide range of
farm to school activities designed to improve access to local foods in
eligible schools from training, planning, and developing partnerships
to creating new menu items, expanding local supply chains, offering
taste tests to children, purchasing equipment, planting school gardens,
and organizing field trips to agricultural operations.
Finally, USDA will continue to provide technical assistance to
State agencies, schools, and other program operators to ensure they
have the guidance and support they need to successfully implement this
rule. USDA will release updated policy guidance and will host a series
of webinars to provide a detailed overview of this rulemaking. In
addition, communications resources related to this rulemaking are
available on the USDA Food and Nutrition Service website.\13\
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\13\ U.S. Department of Agriculture Food and Nutrition Service.
Available at: <a href="https://www.fns.usda.gov/">https://www.fns.usda.gov/</a>.
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Federal Strategies To Reduce Sodium and Added Sugars in the Food Supply

USDA recognizes that schools and child and adult care institutions
are part of the broader food environment. In order to successfully make
improvements to the child nutrition program meal patterns, stakeholders
have emphasized that similar improvements must be made to the broader
food environment. For example, stakeholders have suggested that
children are more likely to accept lower sodium school meals if the
meals they consume outside of school are lower in sodium. Research has
shown that consumer preferences and expectations for salty tastes can
adjust as dietary intake changes.\14\
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\14\ The Food and Drug Administration. Memo: Salt Taste
Preference and Sodium Alternatives. 2016. Available at: <a href="https://www.regulations.gov/document/FDA-2014-D-0055-0152">https://www.regulations.gov/document/FDA-2014-D-0055-0152</a>.
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To that end, other Federal agencies are supporting efforts to
improve dietary behaviors among the U.S. population. For example, the
Food and Drug Administration (FDA) is taking an iterative approach to
gradually reduce sodium in the U.S. food supply that includes
establishing voluntary sodium targets for industry, monitoring and
evaluating progress, and engaging with stakeholders. The FDA is
especially encouraging adoption of the voluntary targets by food
manufacturers whose products make up a significant proportion of
national sales in one or more food categories and restaurant chains
that are national and regional in scope.\15\ These efforts are
discussed in greater detail in Section 5: Sodium.
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\15\ The Food and Drug Administration. Sodium Reduction.
Available at: <a href="http://www.fda.gov/SodiumReduction">www.fda.gov/SodiumReduction</a>.
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The FDA is also committed to reducing added sugars in the U.S. food
supply and in individual's diets. In 2016, FDA issued a final rule \16\
updating the Nutrition Facts label, which requires, in part, a
declaration of the added sugars in a serving of a product and the
percent Daily Value (% DV) for added sugars. Manufacturers with $10
million or more in annual sales were required to update their labels by
January 1, 2020; manufacturers with less than $10 million in annual
food sales were required to update their labels by January 1, 2021.
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\16\ Food Labeling: Revision of the Nutrition and Supplement
Facts Labels (81 FR 33742, May 27, 2016). Available at: <a href="https://www.federalregister.gov/documents/2016/05/27/2016-11867/food-labeling-revision-of-the-nutrition-and-supplement-facts-labels">https://www.federalregister.gov/documents/2016/05/27/2016-11867/food-labeling-revision-of-the-nutrition-and-supplement-facts-labels</a>.
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Additionally, following the 2022 White House Conference on Hunger,
Nutrition, and Health, the White House released a National Strategy
\17\ that highlighted that the intake of added sugars for most
Americans is higher than what is recommended by the Dietary Guidelines
and included several FDA initiatives to accelerate efforts to empower
individuals with information and create a healthier food supply. In
November 2023, FDA, in collaboration with USDA and the U.S. Department
of Health and Human Services, held a virtual public meeting and
listening sessions entitled, ``Strategies to Reduce Added Sugars
Consumption in the United States.'' This public meeting was a
commitment made in the National Strategy and connected Federal
agencies, communities, and private industry to explore different
tactics for reducing added sugars in the U.S. food supply and in
individuals diets. Presentations during this meeting provided a
background on added sugars, discussed strategies for reducing added
sugars by other countries, and highlighted approaches to increase
engagement and education on added sugars. This meeting was accompanied
by two days of facilitated listening sessions where participants
offered feedback and recommendations for next steps on proposed
strategies.
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\17\ Biden-Harris Administration National Strategy on Hunger,
Nutrition, and Health, September 2022. Available at: <a href="https://www.whitehouse.gov/wp-content/uploads/2022/09/White-House-National-Strategy-on-Hunger-Nutrition-and-Health-FINAL.pdf">https://www.whitehouse.gov/wp-content/uploads/2022/09/White-House-National-Strategy-on-Hunger-Nutrition-and-Health-FINAL.pdf</a>.
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The U.S. Department of Health and Human Service's Office of Disease
Prevention and Health Promotion's Healthy People 2030 initiative also
includes a focus on reducing consumption of added sugars and sodium in
individuals aged 2 years and older.\18\ As detailed in Section 2: Added
Sugars and Section 5: Sodium, the Dietary Guidelines, which are updated
and jointly released by the USDA and the Department of Health and Human
Services, recommend limiting foods and beverages higher in added sugars
and sodium. Specifically, the Dietary Guidelines recommend that added
sugars make up less than 10 percent of calories per day for individuals
age 2 years and older. The Dietary Guidelines also recommend consuming
less than 2,300 milligrams of sodium per day--

[[Page 31965]]

and even less for children younger than age 14.\19\
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\18\ U.S. Department of Health and Human Service's Office of
Disease Prevention and Health Promotion. Health People 2030.
Available at: <a href="https://health.gov/healthypeople">https://health.gov/healthypeople</a>.
\19\ U.S. Department of Agriculture and U.S. Department of
Health and Human Services. 2020-2025 Dietary Guidelines for
Americans. 9th Edition. December 2020. Available at: <a href="https://www.dietaryguidelines.gov/">https://www.dietaryguidelines.gov/</a>.
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In addition, the historic White House Conference on Hunger,
Nutrition, and Health inspired actions to support a whole of society
approach to improving nutrition and health. Over $8 billion in public-
and private-sector commitments were made to improve food and nutrition
security, promote healthy choices, and improve physical activity. USDA
expects that, when carried through, the commitments made as part of the
White House Conference will support improvements to the broader food
environment, thereby supporting efforts to improve nutrition in school
and child and adult care settings.
For example, the private sector made the following commitments in
fall 2022: \20\
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\20\ The White House. FACT SHEET: The Biden-Harris
Administration Announces More Than $8 Billion in New Commitments as
Part of Call to Action for White House Conference on Hunger,
Nutrition, and Health. September 28, 2022. Available at: <a href="https://www.whitehouse.gov/briefing-room/statements-releases/2022/09/28/fact-sheet-the-biden-harris-administration-announces-more-than-8-billion-in-new-commitments-as-part-of-call-to-action-for-white-house-conference-on-hunger-nutrition-and-health/">https://www.whitehouse.gov/briefing-room/statements-releases/2022/09/28/fact-sheet-the-biden-harris-administration-announces-more-than-8-billion-in-new-commitments-as-part-of-call-to-action-for-white-house-conference-on-hunger-nutrition-and-health/</a>.
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<bullet> Danone North America committed to prioritizing new
reduced-sugar, low-sugar, and no-added-sugar options in its children's
products and pledged that 95 percent of these products will contain
less than 10 grams of total sugar per 100 grams of food product by
2030.
<bullet> The National Restaurant Association committed to expand
its Kids Live Well program to 45,000 additional restaurants and food
service locations. Kids Live Well is a voluntary initiative to help
restaurants offer healthier meal options for children that meet added
sugars, sodium, and calories thresholds established by the latest
nutrition science.
<bullet> Tyson Foods committed to reformulating and improving the
nutritional value of its prepared foods portfolio, with a focus on
reducing sodium.
<bullet> Walgreens committed to increasing the selection of fresh
food in its stores by 20 percent, including a greater variety of fresh
produce, and implementing new solutions to highlight healthy
ingredients and further reduce harmful ones.
The strides made in school nutrition over the past decade
demonstrate that healthier school meals are possible when everyone who
plays a part--food industry, school nutrition professionals, USDA, and
others--work together toward the common goal of improving children's
health. This includes USDA continuing to do its part to ensure schools
and other child nutrition program operators have the support they need
to successfully implement this rulemaking. USDA recognizes that child
nutrition program operators have a challenging job and appreciates
their tireless dedication to the children in their care. USDA is
continually looking for ways to better support program operators who
provide our Nation's children with nutritious meals and snacks. The
Department welcomes input from stakeholders on what additional guidance
and support State agencies, schools, and other program operators will
need to successfully implement this rulemaking.

Overview of Public Comments and USDA Response

USDA appreciates public interest in the proposed rule. USDA
initially provided a 60-day public comment period (February 7, 2023,
through April 10, 2023). Based on stakeholder requests \21\ for
additional time to review the rule and assess its impact, USDA extended
the public comment period by 30 days. During the 90-day comment period
(February 7, 2023, through May 10, 2023), USDA received more than
136,000 comments. Of the total, about 125,000 were form letters from 46
form letter campaigns, and about 5,000 were unique submissions. An
additional 6,400 were duplicate or non-germane submissions. USDA
received public comments from State agencies, school nutrition
professionals, advocacy groups, industry respondents, professional
associations, school districts, CACFP sponsoring organizations,
dietitians, and individuals, including students, parents and guardians,
grandparents, and other caregivers. Overall, over 23,000 respondents,
including over 700 unique submissions, supported the proposed rule in
its entirety. Over 6,000 respondents, including over 1,000 unique
submissions, opposed the proposed rule in its entirety.
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\21\ USDA received requests to extend the proposed rule comment
period from the American Commodity Distribution Association and the
Urban School Food Alliance and from Senator Boozman and
Representative Foxx. The letters are available at: <a href="https://www.regulations.gov/comment/FNS-2022-0043-2915">https://www.regulations.gov/comment/FNS-2022-0043-2915</a> and <a href="https://www.regulations.gov/comment/FNS-2022-0043-12391">https://www.regulations.gov/comment/FNS-2022-0043-12391</a>.
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Many school nutrition professionals supported provisions of the
rule that provide menu planners more flexibility, and provisions that
maintain requirements that menu planners have already successfully
implemented. For example, a national organization representing tens of
thousands of school nutrition professionals offered support for the
following provisions that USDA ultimately finalized or committed to in
this final rule:
<bullet> Maintaining the current requirement allowing all schools
to offer fat-free and low-fat milk, flavored and unflavored, to K-12
students.
<bullet> Maintaining the current requirement that at least 80
percent of weekly grains offered in school meals are whole grain-rich.
<bullet> Committing to conducting a study on potential associations
between sodium reduction and student participation.
<bullet> Allowing schools more flexibility to offer meats/meat
alternates in place of grains at breakfast.
<bullet> Allowing tribally operated schools, schools operated by
the Bureau of Indian Education, and schools serving primarily American
Indian or Alaska Native children to serve vegetables to meet the grains
requirement.
<bullet> Codifying in regulation that traditional Indigenous foods
may be served in reimbursable school meals.
<bullet> Allowing nuts and seeds to credit for the full meats/meat
alternates component in all child nutrition programs and meals.
<bullet> Exempting bean dip from the total fat standard in Smart
Snacks regulations.
<bullet> Allowing State agencies discretion to make exceptions to
the degree requirement for school nutrition directors hired in medium
and large districts.
USDA worked in collaboration with a data analysis company to code
and analyze the public comments using a commercial, web-based software
product. The Summary of Public Comments report is available under the
Browse Documents tab in docket FNS-2022-0043. All comments are posted
online at <a href="https://www.regulations.gov">https://www.regulations.gov</a>.\22\
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\22\ See: Docket FNS-2022-0043. Child Nutrition Programs:
Revisions to Meal Patterns Consistent with the 2020 Dietary
Guidelines for Americans. Available at: <a href="https://www.regulations.gov/docket/FNS-2022-0043">https://www.regulations.gov/docket/FNS-2022-0043</a>.
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The following paragraphs describe general themes from the public
comments. Many respondents also provided feedback on the specific
proposals. This specific feedback is included in the subsequent
sections of the preamble, as applicable.
Public Comments: Dedication of School Nutrition Professionals
Several respondents expressed appreciation for the efforts of
school

[[Page 31966]]

nutrition professionals. An advocacy group noted that school nutrition
professionals provide balanced, nutritious meals to children, promoting
academic success and supporting the entire school community's efforts
to enrich the lives of students. Another respondent emphasized that
school nutrition professionals are deeply caring people who are
invested in children's health and wellbeing. An advocacy group agreed,
noting that school nutrition professionals go ``above and beyond'' to
keep children nourished; as an example, one respondent described
efforts at their school to create menus that are nutritionally
balanced, flavorful, and cater to student preferences. When considering
options for the final rule, one dietitian urged USDA to listen to the
school nutrition professionals who ``do the work'' every day by
providing meals to children.
Respondents also commended successful implementation of school meal
pattern improvements established under the Healthy Hunger-Free Kids
Act. For example, one advocacy group reported that the updated
nutrition standards enhanced the nutritional quality of meals and
increased student participation. Another advocacy group noted that
school nutrition professionals have worked tirelessly to reduce sodium,
calories, and fat; to introduce students to whole grain foods; and to
increase fruits and vegetables in school meals. Another respondent was
proud of efforts made by school nutrition professionals thus far,
emphasizing that school meals are the healthiest meals that most
students receive each day. A joint response from several elected
officials stated that strong school nutrition requirements are ``one of
the most important public health achievements in a generation.'' This
response also noted that school cafeterias across the country are
``leading the way to serving healthy, delicious, and culturally
relevant foods'' to children.
USDA Response: USDA appreciates and agrees with public comments
that cited the important work of school nutrition professionals. The
Department values the vital work that school nutrition professionals
and other child nutrition program operators do every day to keep our
Nation's children nourished and healthy. In this final rule, USDA
incorporated feedback from individuals with firsthand experience
operating the child nutrition programs. For example, this feedback is
reflected in Section 3A: Flavored Milk, where USDA considered
operational challenges that respondents raised in response to the
proposal that would have applied different milk requirements across
grade levels. USDA also considered child nutrition program operator
feedback when determining implementation dates for the provisions of
this rule, including in Section 5: Sodium.
Public Comments: Nutrition and Health
Over 11,000 respondents cited the need for strong nutrition
requirements. For example, an advocacy group suggested that aligning
the school meal nutrition requirements with the goals of the Dietary
Guidelines ``sets our students up for lifelong success.'' Other
respondents emphasized the importance of strong nutrition requirements
to children's academic achievement and overall wellbeing. A form letter
campaign stated that strong nutrition requirements can help to address
health disparities and improve nutrition equity. Another respondent
agreed, maintaining that the child nutrition programs are important
tools in addressing health disparities and advancing nutrition security
among communities of color. An advocacy group emphasized the importance
of nutritious meals in schools and child care settings, noting that
these meals often represent a significant portion of children's food
intake. This respondent argued that continued improvement in the meal
patterns could reduce children's risk for diet-related diseases.
Another advocacy group agreed, stating that the school meal programs
provide more than half of some students' calories and are often the
healthiest sources of food for school children. An industry respondent
described school meals as a nutrition ``success story'' and stated that
good nutrition is essential to children's growth, learning, and
development. An advocacy group emphasized that the proposed evidence-
based standards will ``make school meals even healthier.''
Some respondents, including a form letter campaign, encouraged USDA
to go further; for example, by implementing sodium reductions beyond
those proposed in the rule. Respondents also encouraged USDA to
strengthen the whole grains proposal, by requiring all grains offered
in school meals to be whole grain-rich.\23\ Others urged USDA to adopt
a swifter timeline for implementation; for example, one advocacy group
recommended that USDA ``implement the strongest nutrition standards on
the fastest timeline possible.'' A few respondents, including an
advocacy group, encouraged USDA to update the Summer Food Service
Program meal patterns to more closely align with the goals of the
Dietary Guidelines, including by serving more fruits, vegetables, and
whole grains. These respondents emphasized the importance of providing
children with healthy, high-quality meals year-round.
---------------------------------------------------------------------------

\23\ To meet USDA's whole grain-rich criteria, a product must
contain at least 50 percent whole grains, and the remaining grain
content of the product must be enriched.
---------------------------------------------------------------------------

USDA Response: USDA appreciates public comments that discussed the
importance of strong, science-based nutrition requirements and the
positive impact on children's health. The Department agrees with
respondents that asserted that meals served in child nutrition programs
contribute to healthy dietary patterns and improved dietary outcomes.
In this final rule, USDA has considered these important factors, along
with the importance of ensuring that the meal patterns are practical
and achievable for schools. For example, this final rule will continue
to reduce sodium in school meals, while taking a gradual approach to
implementation to give schools, students, and the food industry time to
adapt to the changes. The Department also acknowledges comments that
requested more whole grains in school meals; instead, this final rule
continues the requirement that the majority of grains offered be whole
grain-rich, while providing schools some flexibility to offer other
grains. USDA remains committed to its statutory obligation to establish
nutrition requirements for school meals that are consistent with the
goals of the Dietary Guidelines in efforts to improve the nutritional
quality of program meals serve to the Nation's children. While USDA
appreciates public comments regarding the Summer Food Service Program,
extensive updates to the Summer Food Service Program meal pattern are
outside the scope of this rulemaking.
Public Comments: Student Participation
Many respondents expressed concern that the proposed changes could
negatively impact student participation and consumption of meals. Some
respondents suggested that, if the proposed rule was finalized,
students would choose to consume a lunch from home or elsewhere instead
of participating in the school meal programs. These respondents argued
that this would result in non-participating students consuming a meal
that is less nutritious than school meals offered under the current
requirements. Other respondents maintained that school nutrition
programs would suffer if student participation declines.

[[Page 31967]]

Respondents also raised concerns that the proposed limits for added
sugars and sodium could make school meals less appealing to students.
For example, an industry respondent asserted that the proposed added
sugars and sodium limits would negatively impact the taste of foods
that children enjoy. However, an advocacy group noted that students and
families support improving the nutritional quality of school meals,
citing the role school meals play in student academic achievement and
health. A joint comment from several elected officials suggested that
children enjoy healthier school meals, and that the amount of food
wasted in schools has not changed since the nutrition requirements were
updated in 2012.
USDA Response: Although USDA does not expect that updated nutrition
requirements would negatively impact student participation in the
school meal programs,\24\ the Department acknowledges respondent
concerns about the importance of maintaining student participation. The
Department strives to advance nutrition security while also ensuring
that school meals are appealing and enjoyable to students. The changes
finalized in this rule thoughtfully consider both concerns by gradually
phasing in required changes, such as the added sugars limits and sodium
reduction. This phased-in approach will give program operators and
children time to implement and adapt to the changes. Additionally, as
noted in Section 5: Sodium, as part of this rulemaking, USDA has
committed to conducting a study on potential associations between
sodium reduction and student participation.
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\24\ According to USDA research conducted following
implementation of the 2012 final rule, ``There was a positive and
statistically significant association between student participation
in the NSLP and the nutritional quality of NSLP lunches, as measured
by the HEI-2010. Rates of student participation were significantly
higher in schools with HEI-2010 scores in the third and highest
quartiles (that is, the top half) of the distribution compared to
the lowest quartile.'' See page 38. U.S. Department of Agriculture,
Food and Nutrition Service, Office of Policy Support, School
Nutrition and Meal Cost Study Summary of Findings. Available at:
<a href="https://www.fns.usda.gov/school-nutrition-and-meal-cost-study">https://www.fns.usda.gov/school-nutrition-and-meal-cost-study</a>.
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Public Comments: Product Availability
Numerous respondents argued that the proposed meal pattern changes
would force vendors out of the child nutrition market, making it more
difficult for schools to find products needed to comply with USDA meal
requirements. Several respondents expressed concern about increased
costs, procurement challenges, and reduced options for school breakfast
under the proposed rule. A joint comment from a group of elected
officials agreed, arguing that the proposed changes could lead to
``increased complexity'' in school food purchasing, decreasing the
number of options available to schools and forcing schools to compete
for a limited supply of specialized foods. Respondents also expressed
concern about ongoing supply chain issues and food-price inflation. One
industry respondent suggested that rather than implementing new
requirements, USDA should maintain the current requirements and teach
students how to make healthy choices through nutrition education.
A school food service director stated that procurement would be a
challenge under the proposed rule and suggested that it takes ``a few
years'' for manufacturers to catch up with new regulations. This
respondent also suggested manufacturers do not dedicate as much space
to school-specific items in their warehouses, which impacts product
availability. An advocacy group argued that it takes industry three to
five years, and a significant amount of money, to reformulate ``any
given product.'' This respondent also pointed out that the K-12 sector
tends to be the least lucrative market for the food industry. Another
advocacy group agreed, arguing that the cost of producing and stocking
specialized K-12 menu items is ``too high,'' and the demand for these
products on the commercial market is ``too low.'' A State agency also
expressed concern about proposed implementation timeframes, noting that
manufacturer and distributor capabilities have not yet returned to pre-
pandemic levels. A form letter campaign encouraged USDA to work with
the food industry to ensure product availability, particularly for
lower sodium products. One respondent stated that school kitchens are
understaffed, and school nutrition professionals rely heavily on food
manufacturers to provide meals for students. A school district raised
concerns about increased pressure for scratch cooking; while this
respondent acknowledged they would ``love for more scratch options to
be served,'' they did not view this as a realistic option given current
staffing challenges.
Respondents also cited the importance of supporting local farmers
and producers and helping children learn about where their food comes
from. One advocacy group cited the benefits of local food systems,
which they argued stimulate local economies and provide reliable
product availability during supply chain disruptions. Respondents
encouraged USDA to consider equity and inclusion in establishing
regulatory requirements; for example, an advocacy group suggested that
USDA consider the broader food system and supply chains, including farm
workers and other people employed in the food system. This respondent
supported efforts to create a fair and sustainable agricultural
economy. Another respondent advocated for policies that encourage child
nutrition operators to source from socially disadvantaged producers. An
advocacy group suggested that purchases made through the child
nutrition programs should prioritize respect, equity, and inclusion
across the food supply chain. This respondent asserted that supporting
local and regional foods systems, including by strengthening support
for locally owned agricultural and food processing operations, may
create more diversified and resilient supply chains. While offering
support for the proposed geographic preference provision, some
respondents suggested operators would need more financial support to
purchase local foods, especially in the CACFP.
USDA Response: USDA recognizes that many stakeholders expressed
concerns about product availability and understands the impact of
product availability and cost on the operation of the child nutrition
programs, as well as challenges posed by staffing constraints. At the
same time, the Department appreciates public comments that cited
continuous industry efforts to develop nutritious foods for child
nutrition programs, and many of the provisions of this rule incorporate
input from industry respondents. For example, USDA agrees with public
comments that stated there are products already available that meet the
product-based limits for added sugars, which aligns with data collected
by USDA.\25\ USDA expects that ongoing industry efforts to develop
nutritious foods will support product availability for child nutrition
programs. USDA considered each of these factors when developing this
final rule; for example, by moving forward with important changes while
providing ample time for implementation. As detailed in Section 2:
Added Sugars and Section 5: Sodium, USDA is providing about three years
for implementation of the weekly added sugars limit and sodium
reduction in response to public comments that suggested it takes about

[[Page 31968]]

three years for manufacturers to reformulate products.
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\25\ U.S. Department of Agriculture Food and Nutrition Service,
Office of Policy Support data collection of nutrition label
information from major cereal and yogurt manufacturer K-12 and food
service catalogs. Data were collected on 191 total cereal products
and 110 total yogurt products. See Regulatory Impact Analysis.
---------------------------------------------------------------------------

Public Comments: Financial Challenges
Many respondents emphasized the importance of investing in school
nutrition programs financially. For example, respondents cited concerns
about food cost, inflation, meal debt, and supply chain challenges. An
advocacy group noted that many stakeholder concerns about the proposed
rule are related to resource constraints. This respondent suggested
financial pressures undermine the program's goals. Another advocacy
group expressed appreciation for the HMI Initiative to support small
and rural schools, and supported USDA's plans to provide technical
assistance, share best practices, and encourage collaboration with the
food industry. One State agency supported increased meal
reimbursements, investments in kitchen equipment and infrastructure,
and more training opportunities. Another respondent agreed, stating
that the program reimbursement rates are ``simply not enough'' to cover
food and labor costs, while others suggested schools would need extra
supplies or funding to implement the updated meal patterns.
USDA Response: USDA acknowledges public comments from program
operators that emphasized that financial sustainability is critical for
successful child nutrition program operations. USDA understands that
schools and other program operators need support to succeed in
implementing updated requirements. As part of this effort, USDA
continues to provide high-quality, cost-effective foods through USDA
Foods and various grant-funded opportunities. USDA has also provided
significant additional financial resources to address specific needs,
such as the $3.8 billion in supply chain assistance funds provided in
fiscal years 2021, 2022, and 2023 to address product shortages and
price increases experienced after the pandemic.\26\ While increasing
the Federal reimbursement rates is beyond USDA's authority and would
require Congressional action, the Department remains committed to
providing support to child nutrition program operators.
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\26\ U.S. Department of Agriculture. FNS Actions to Address
COVID-19 Related Supply Chain Disruptions. Available at: <a href="https://www.fns.usda.gov/supply-chain">https://www.fns.usda.gov/supply-chain</a>.
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Public Comments: Practical and Durable Standards
Numerous respondents discussed the need for attainable nutrition
requirements. Some respondents asserted that certain proposals are
impractical, or that the school nutrition programs cannot move beyond
current meal pattern requirements. A handful of respondents suggested
maintaining the transitional standards as the permanent school
nutrition requirements, suggesting the transitional standards represent
a ``middle ground.'' Many respondents recommended that USDA study the
impact of the current meal pattern requirements prior to making any
further changes.
Respondents cited concerns about the broader food environment,
arguing that schools are not solely to blame for children's excess
consumption of added sugars and sodium. One respondent pointed out that
when considering the full calendar year, many children consume more
meals outside of school than in school. This respondent agreed that
school meals contribute to children's health but emphasized the
importance of improving food choices in other settings. Another
respondent recommended that USDA focus on the ``food system as a
whole'' and engage in a public health initiative to reduce added sugars
and sodium in grocery store foods.
Regarding implementation dates, one dietitian recommended that USDA
delay implementation of any new requirements until 2027. This
respondent suggested that additional time would allow school nutrition
directors to educate staff on upcoming changes and allow industry to
develop new food products. A school district agreed, describing the
implementation timeframes for added sugars and sodium as ``a little
rushed.'' Several respondents specifically recommended delaying
implementation of any provisions that would impact CACFP. These
respondents raised concerns about a lack of CACFP stakeholder
engagement and the importance of providing the CACFP community ample
time to prepare for the changes.
Other respondents felt the proposed implementation timeframes were
adequate. An advocacy group argued that the food industry could adapt
to incremental implementation, which they noted was built into the
proposed rule. A State agency agreed, suggesting that the proposed
phased-in implementation would provide the opportunity to revise menu
offerings, manage inventory, and offer technical assistance. A second
State agency affirmed that the proposed implementation dates provide
adequate lead time; however, this respondent also noted that timely
publication of the final rule would be ``critical'' to allow for
product reformulation, procurement, and menu planning. An advocacy
group described USDA's phased-in approach as ``reasonable,'' stating
that the proposed rule would improve school meals ``in a practical
way.'' This respondent suggested that the proposed sodium limits, for
example, would give schools time to plan, source, and test meals that
meet the proposed limits. Another advocacy group that described the
rule as ``scientifically sound and practical'' argued that the proposed
rule would give schools time to implement the new requirements while
also prioritizing children's health. A joint response from several
elected officials maintained that the proposed rule included a
``common-sense incremental approach to implementation, making it
feasible for schools and the food industry to have success.'' An
advocacy group supported the phased-in implementation for sodium but
noted it would be ``incumbent'' upon manufacturers to reformulate
products to ensure the limits would be effective.
USDA Response: USDA recognizes that meaningful improvement in the
nutritional quality of school meals is best achieved by nutrition
requirements that are both ambitious and feasible. The Department also
acknowledges public comments that suggested child nutrition program
operators need time to successfully implement new requirements, and
that feedback is reflected in this final rule. For example, this final
rule gradually phases in certain requirements, such as the added sugars
limits, to provide program operators time to make menu changes.
Additionally, this final rule includes several provisions that provide
menu planners with more options to create healthy meals; for example,
by making it easier for schools to offer meats/meat alternates at
breakfast (see Section 6: Meats/Meat Alternates at Breakfast). By
incorporating valuable feedback from stakeholders into this final rule,
the Department continues to put children's health at the forefront
while also ensuring that the program requirements are achievable and
set up schools and child and adult care institutions for success.
Public Comments: Other School Nutrition Comments
Some respondents recommended other meal pattern requirements or
offered suggestions for USDA to consider. One respondent suggested
adding a requirement for ``healthy fats'' in school meals, while
another recommended establishing a minimum fiber standard. Another
respondent encouraged USDA to provide recipes, training, and nutrition
education to

[[Page 31969]]

encourage schools to offer more seafood in school meals. Numerous
respondents recommended that USDA restrict or limit the use of
artificial or non-nutritive sweeteners in school meals. Others
encouraged USDA to provide incentives for fresh fruits and vegetables,
rather than restricting certain foods. A form letter campaign and
numerous other respondents supported expanding access to vegetarian,
vegan, or plant-based school meals. One respondent suggested
implementing a plant-based protein requirement in school meals, while
another encouraged schools to adopt a ``meat-free day.'' A few
respondents noted that Black, Indigenous, and other People of Color
(BIPOC) are three times as likely to follow a plant-based diet than
white people and suggested that providing more plant-based meals would
support equity in the school meal programs. Respondents also cited the
importance of meeting cultural food preferences. For example, one
advocacy group noted that food is ``socially and emotionally
nurturing'' and emphasized the importance of meeting nutrition
requirements as well as food preferences. Another advocacy group cited
a research brief that suggested that ``enhancing the palatability and
cultural appropriateness of meals'' offered would improve meal
consumption.
A few respondents, particularly those who operate multiple child
nutrition programs, supported stronger alignment of the nutrition
requirements for all program meal patterns. A student encouraged USDA
to seek student perspectives on meal pattern requirements. This
respondent suggested students who participate in the school meal
programs would provide important perspectives on food waste, cultural
relevance, and nutrition. Although outside the scope of this
rulemaking, several respondents supported expanding access to free
school meals and providing students with more time to eat school lunch.
For example, one respondent noted that studies have shown that even
modest increases in time to eat result in ``improved consumption,
particularly of fruit and vegetables, and reduced food waste.''
USDA Response: USDA appreciates public comments that provided
additional feedback and suggestions for new requirements beyond what
was proposed. Certain suggestions, such as adjusting the eligibility
requirements for free meals or providing more time for children to eat
their meals, are beyond USDA's authority. While USDA does not have
authority to regulate the length of school meal periods, USDA
encourages schools to provide children adequate seat time to consume
their meals. USDA acknowledges public comments encouraging more plant-
based meals as a strategy to support equity in school meals. Meal
pattern requirements are established to provide the foundation of well-
balanced meals, and USDA encourages program operators to develop menus
that meet the needs of their diverse communities. This rulemaking
provides more opportunities for schools to offer plant-based meals. In
response to requests to streamline program requirements, USDA has
endeavored to better align child nutrition program requirements in this
rulemaking; for example, by aligning nut and seed crediting across all
child nutrition programs and meals (see Section 11: Nuts and Seeds).
While other suggestions outside the scope of this rulemaking, such as
developing requirements for ``healthy fats'' and artificial sweeteners,
are not included in the final rule, the Department remains committed to
providing the technical assistance needed to enable schools to serve
diverse, culturally diverse meals to meet the unique needs and
preferences of their students.
Public Comments: Child and Adult Care Food Program
Although the proposed rule primarily focused on revisions to the
school meal patterns, the following proposals applied to CACFP:
<bullet> Added Sugars: USDA proposed updating the current CACFP
total sugars limits for breakfast cereals and yogurt to added sugars
limits, consistent with the proposed limits for breakfast cereals and
yogurt in the school meal programs.
<bullet> Whole grains definition: USDA proposed adding a definition
of ``whole grain-rich'' to CACFP regulations, consistent with the
definition USDA proposed adding in school meal regulations.
<bullet> Menu Planning Options for American Indian and Alaska
Native Students: USDA proposed to allow CACFP institutions and
facilities serving primarily American Indian or Alaska Native children
to substitute vegetables for grains. This proposal also applied to
NSLP, SBP, and SFSP.
<bullet> Nuts and Seeds: USDA proposed to allow nuts and seeds to
credit for the full meats/meat alternates component in all child
nutrition program meals and snacks. This proposal applied to NSLP, SBP,
SFSP, and CACFP.
<bullet> Geographic Preference: USDA proposed to expand geographic
preference options by allowing ``locally grown, raised, or caught'' as
procurement specifications for unprocessed or minimally processed food
items in the child nutrition programs. This proposal applied to NSLP,
SBP, SFSP, and CACFP.
<bullet> Miscellaneous Changes: USDA proposed to change the name of
the ``meats/meat alternates'' meal component to ``protein sources'' in
CACFP, consistent with the proposed change in NSLP and SBP. USDA also
proposed a few other minor terminology changes and meal pattern table
revisions that impact CACFP.
<bullet> Proposals from Prior USDA Rulemaking: USDA signaled its
intent to finalize a prior proposal that would update meal modification
regulations for disability and non-disability reasons, impacting NSLP,
SBP, and CACFP. USDA signaled its intent to finalize a prior proposal
regarding a technical correction for nutrient requirements for fluid
milk substitutes, impacting NSLP, SMP, SBP, and CACFP.
With the exception of the proposal to change the name of the
``meats/meat alternates'' meal component to ``protein sources'' in
CACFP, which is not finalized, all of the proposed changes to CACFP are
finalized in this rulemaking.
USDA received over 90 comments from CACFP sponsoring organizations.
USDA also received comments from advocacy groups representing the CACFP
community, and hundreds of form letters from individuals who are a part
of the CACFP community. An advocacy group recommended that USDA engage
CACFP stakeholders before finalizing and implementing the rule. This
respondent argued such engagement is necessary to understand the rule's
impacts on CACFP, including costs, product availability, and
nutritional quality. Another advocacy group emphasized the importance
of supporting efforts to stabilize the CACFP workforce. This respondent
recommended delaying implementation to ensure that the CACFP community
has time to prepare for implementation and provide input on the
proposed changes.
Specific feedback from the CACFP community is detailed in the
relevant sections throughout this preamble. At a high level, concerns
raised by the CACFP community include:
<bullet> Potential impact on training, technical assistance, and
resource development, especially related to the proposed terminology
change for the meats/meat alternates component.
<bullet> Potential costs associated with updating websites,
materials, menus, and recipes.
<bullet> The need for implementation support for the proposed
changes, such as the need for tools and resources to

[[Page 31970]]

successfully implement the proposed added sugars limits for yogurt and
cereal. Specifically, one advocacy group recommended USDA develop an
``approved'' list of products that could be offered under the added
sugars limits.
<bullet> An overall concern that the proposed rule lacked a ``CACFP
lens,'' and therefore did not adequately consider its potential impact
on the CACFP community.
The CACFP community also raised concerns about other challenges
facing operators that were outside the scope of the proposed rule. For
example, respondents noted ongoing pandemic recovery, staff shortages,
and vendor losses, and the loss of pandemic-era funding and
flexibilities. Respondents emphasized the importance of supporting
CACFP, which one advocacy group described as a ``financial and
nutritional lifeline'' for many children and families. Other
respondents agreed, noting that CACFP plays a ``vital role in
supporting good nutrition'' and providing ``quality affordable child
care'' for families.
USDA Response: USDA appreciates public comments received on behalf
of the CACFP community and agrees that CACFP operators play a vital
role in supporting the goals of child nutrition programs. USDA
acknowledges that the listening sessions conducted prior to the
development of the proposed rule were primarily focused on nutrition
requirements for school meal programs, given that the majority of the
provisions in the proposed rule relate to NSLP and SBP. However, many
of the organizations that USDA engaged with through these listening
sessions also advocate on behalf of CACFP and/or SFSP operators, in
addition to school meals. USDA also received over 8,000 comments on the
transitional standards rule, including comments related to CACFP, which
were considered in the development of the proposed rule. Public
comments submitted in response to the 2023 proposed rule, including
those submitted by the CACFP community, were also crucially important
to the development of this final rule. As emphasized throughout the
proposed rule, USDA greatly values this feedback. USDA has responded to
the CACFP community's feedback in the subsequent sections of the rule,
especially Section 2: Added Sugars and Section 20: Miscellaneous
Changes.
Public Comments: Supplemental Nutrition Assistance Program
Several respondents raised concerns about the Supplemental
Nutrition Assistance Program, or SNAP, a USDA Federal assistance
program. While comments related to SNAP are outside the scope of this
rulemaking, USDA is providing a summary of the comments here.
Respondents were concerned that SNAP does not impose the same nutrition
requirements as USDA's child nutrition programs. These respondents
asserted that students, including those participating in SNAP, are
exposed to unhealthy food outside of school. Some respondents argued
that all Federal nutrition programs, including SNAP, should have the
same nutrition requirements. For example, a dietitian suggested that if
USDA finalizes added sugars limits for school meals, those limits
should also apply to SNAP.
USDA Response: USDA appreciates public comments about SNAP and its
relation to the Department's other Federal assistance programs,
including the child nutrition programs. USDA's mission is to increase
food security and reduce hunger by providing children and income
eligible people access to food, a healthful diet, and nutrition
education in a way that supports American agriculture and inspires
public confidence. Within that mission, USDA administers 16 critical
nutrition assistance programs, one of which is SNAP, the Nation's
largest domestic food and nutrition assistance program for income
eligible Americans. SNAP is the primary source of nutrition assistance
for millions of people each month, and SNAP participants can purchase a
variety of eligible foods items, as defined by statute.\27\ USDA is
committed to helping SNAP participants and all Americans make healthier
food choices through evidenced-based nutrition education. SNAP-Ed is an
evidenced-based, federally funded grant program that supports SNAP
participants with nutrition education to help participants maximize
benefits and make healthy food choices to promote nutrition security.
In USDA's most recent analysis of food purchases by SNAP and non-SNAP
households,\28\ SNAP households and non-SNAP households purchased
similar types of foods, such as fruit, vegetables, and milk. This
affirms that SNAP households are purchasing similar types of nutrient-
dense foods compared to non-SNAP households. Additionally, USDA
encourages healthy eating for SNAP participants through incentive
programs, which provide additional ways to make healthy choices, such
as purchasing fruits and vegetables, easier for SNAP participants.
Recent research \29\ shows that participants of the Gus Schumacher
Nutrition Incentive Program (GusNIP) reported greater fruit and
vegetable intake and improvements in food security. Similarly, in a
Healthy Incentive Pilot (HIP) report,\30\ participants spent more SNAP
benefits on fruits and vegetables than non-HIP households. SNAP
incentive programs, along with all USDA Federal nutrition assistance
programs, play an important role in making nutritious foods more
accessible and affordable. While there are differences across the
programs, each of USDA's Federal nutrition assistance programs are
critical to advancing nutrition security and promoting healthy dietary
patterns.
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\27\ See: Section 3(k) of the Food and Nutrition Act of 2008 (7
U.S.C. 2012(k)).
\28\ U.S. Department of Agriculture. Foods Typically Purchased
by Supplemental Nutrition Assistance Program (SNAP) Households.
November 18, 2016. Available at: <a href="https://www.fns.usda.gov/snap/foods-typically-purchased-supplemental-nutrition-assistance-program-snap-households">https://www.fns.usda.gov/snap/foods-typically-purchased-supplemental-nutrition-assistance-program-snap-households</a>.
\29\ GusNIP NTAE. Gus Schumacher Nutrition Incentive Program
(GusNIP): Impact Findings Y3: September 1, 2021 to August 31, 2022.
Prepared for U.S. Department of Agriculture, National Institute of
Food and Agriculture; 2023. Available at: <a href="https://nutritionincentivehub.org/gusnip-ntae-y3-impact-findings">https://nutritionincentivehub.org/gusnip-ntae-y3-impact-findings</a>.
\30\ U.S. Department of Agriculture. Evaluation of the Healthy
Incentives Pilot (HIP) Final Report. September 2014. Available at:
<a href="https://www.fns.usda.gov/snap/hip/final-evaluation-report">https://www.fns.usda.gov/snap/hip/final-evaluation-report</a>.
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Section 2: Added Sugars

Current Requirement

Currently, there are no added sugars limits in the school meal
programs. Under the current regulations, schools may choose to serve
some menu items and meals that are high in added sugars, provided they
meet average weekly calorie limits (7 CFR 210.10(f)(1) and
220.8(f)(1)).
The Dietary Guidelines for Americans, 2020-2025 recommends limiting
intake of added sugars to less than 10 percent of calories per day.
School meal data from school year (SY) 2014-2015 found that the average
percentage of calories from added sugars in school meals was
approximately 11 percent in school lunch and 17 percent in school
breakfast.\31\ The Dietary Guidelines further indicate that 70 to 80
percent of all school-aged children exceed the recommended limit for
added sugars.\32\ The current calorie requirements for the school meal
programs are intended to encourage schools to choose nutrient-dense
foods and beverages. However,

[[Page 31971]]

USDA determined that a specific added sugars requirement would more
effectively reduce added sugars in school meals, consistent with the
goals of the Dietary Guidelines.
---------------------------------------------------------------------------

\31\ Fox MK, Gearan EC, Schwartz C. Added Sugars in School Meals
and the Diets of School-Age Children. Nutrients. 2021; 13(2):471.
Available at: <a href="https://doi.org/10.3390/nu13020471">https://doi.org/10.3390/nu13020471</a>.
\32\ U.S. Department of Agriculture and U.S. Department of
Health and Human Services. 2020-2025 Dietary Guidelines for
Americans. 9th Edition. December 2020. Available at: <a href="https://www.dietaryguidelines.gov/">https://www.dietaryguidelines.gov/</a>.
---------------------------------------------------------------------------

Proposed Rule

USDA proposed to reduce added sugars in school meals through a
gradual, phased-in, two-step approach: product-based limits followed by
a weekly dietary limit. First, beginning in SY 2025-2026, USDA proposed
to implement quantitative limits for leading sources of added sugars in
school meals. The proposed product-based limits were as follows:
<bullet> Grain-based desserts: would be limited to no more than 2
ounce equivalents per week in school breakfast, consistent with the
current limit for school lunch. Examples of grain-based desserts
include cereal bars, doughnuts, sweet rolls, toaster pastries, coffee
cakes, and fruit turnovers.\33\
---------------------------------------------------------------------------

\33\ U.S. Department of Agriculture, Food Buying Guide for Child
Nutrition Programs. Available at: <a href="https://foodbuyingguide.fns.usda.gov/Appendix/DownLoadFBG">https://foodbuyingguide.fns.usda.gov/Appendix/DownLoadFBG</a>. See: Section 4--
Grains, Exhibit A: Grain Requirements for Child Nutrition Programs,
for a list of grain-based desserts.
---------------------------------------------------------------------------

<bullet> Breakfast cereals: would be limited to no more than 6
grams of added sugars per dry ounce.
<bullet> Yogurt: would be limited to no more than 12 grams of added
sugars per 6 ounces.
<bullet> Flavored milk: would be limited to no more than 10 grams
of added sugars per 8 fluid ounces or, for flavored milk sold as a
competitive food \34\ for middle and high schools, 15 grams of added
sugars per 12 fluid ounces.\35\
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\34\ Competitive food is a term to define all food and beverages
that are available for sale to students on the school campus during
the school day. (7 CFR 210.11(a)(2))
\35\ For clarification, USDA proposed a higher added sugars
limit for flavored milk sold as a competitive food in middle and
high schools due to the larger serving size. The serving size for
milk offered as part of a reimbursable meal is 8 fluid ounces. Milks
sold to middle and high school students as a competitive food may be
up to 12 fluid ounces.
---------------------------------------------------------------------------

For the second step, beginning in SY 2027-2028, USDA proposed to
implement a dietary specification for added sugars. The dietary
specification would limit added sugars to less than 10 percent of
calories per week in the school lunch and breakfast programs. This
weekly limit would be in addition to the product-based limits described
above.
USDA requested public input on both steps as well as the following
questions:
<bullet> USDA is proposing product-specific limits on the following
foods to improve the nutritional quality of meals served to children:
grain-based desserts, breakfast cereals, yogurt, and flavored milk. Do
stakeholders have input on the products and specific limits included in
this proposal?
<bullet> Do the proposed implementation timeframes provide
appropriate lead time for food manufacturers and schools to
successfully implement the new added sugars standards? Why or why not?
<bullet> What impact will the proposed added sugars standards have
on school meal menu planning and the foods schools serve at breakfast
and lunch, including the overall nutrition of meals served to children?
For consistency across child nutrition programs, USDA also proposed
to apply the product-based added sugars limits to breakfast cereals and
yogurt served in the CACFP; under the proposed rule, the added sugars
limits would replace the current total sugars limits for breakfast
cereals and yogurt in CACFP. The proposed product-based limits for
CACFP aligned with the proposed limits for school breakfast and lunch,
and were as follows:
<bullet> Breakfast cereals: would be limited to no more than 6
grams of added sugars per dry ounce.
<bullet> Yogurt: would be limited to no more than 12 grams of added
sugars per 6 ounces.

Public Comments

USDA received tens of thousands of comments on added sugars, with
most in support of reducing added sugars in school meals. State
agencies, school nutrition professionals, advocacy groups, industry
respondents, professional organizations, CACFP sponsoring
organizations, dietitians, and individual respondents, such as parents
and students, provided input on the proposals for added sugars. At a
high-level, respondents provided the following feedback on added sugars
requirements:
<bullet> Limiting added sugars in school meals is important for
children's health and academic performance.
<bullet> Product-based limits would incentivize the food industry
to reformulate products to help schools meet the weekly added sugars
limit.
<bullet> Many respondents expressed a preference for one type of
limit over the other:
<bullet> Some respondents suggested that product-based limits would
be easier and less burdensome for program operators to implement
compared to the weekly limit.
<bullet> Other respondents asserted that weekly limits align with
recommendations from the Dietary Guidelines and would allow more
flexibility for menu planners compared to the product-based limits.
The following paragraphs describe specific feedback on the proposal
as well as feedback on each step of the proposal: product-based limits
and weekly limits.
Reducing Added Sugars and Children's Health
Numerous respondents, including advocacy groups, school districts,
school nutrition professionals, parents, and a few form letter
campaigns, supported added sugars limits in school meals. Several
advocacy groups justified limits on added sugars based on the
recommendations from the Dietary Guidelines. One advocacy group
asserted that reducing added sugars is ``urgent'' because children's
current intake of added sugars is high. Other proponents reasoned that
implementing added sugars limits in school meals would be beneficial to
children's health. An advocacy group applauded the proposal because it
makes a distinction between naturally occurring and added sugars and
creates an incentive to reduce added sugars in ``hyper-processed
products.'' A few parents emphasized that reducing added sugars is a
top health priority. One parent strongly supported the proposed limits,
stating that currently, ``children who rely on school meals [have] no
option but to eat sugary breakfasts.'' An individual cited multiple
studies demonstrating the negative impacts of added sugars on health,
and an advocacy group noted that consuming too many added sugars can
increase the risk of type 2 diabetes and heart disease. A few
individuals and a form letter campaign affirmed that reducing added
sugars may help address health disparities by improving the overall
nutritional quality of school meals.
Challenges With Reducing Added Sugars
Other respondents cited challenges with reducing added sugars in
school meals. A school district appreciated USDA's efforts but voiced
concerns that an added sugars limit would drastically reduce schools'
buying options. One school food service director claimed that school
meals are already low in sugar and that tracking added sugars would be
another standard to monitor. An industry respondent noted that if the
proposed rule is finalized, added sugars would be the only element in
the meal pattern ``with two prongs of compliance monitoring,'' as it
would be subject to both product-based and weekly limits. A dietitian
expressed concern about the palatability of meals, adding that

[[Page 31972]]

limiting added sugars could negatively impact student participation.
One individual supported reducing added sugars, but expressed concern
that students will not like the food, which could increase food waste.
One industry respondent argued that the existing calorie ranges
``adequately control for sugar'' and schools ``should not be further
regulated'' with added sugars limits. Another industry respondent
opposed the proposed added sugars limits due to the cost of product
reformulation. An advocacy group also raised concerns about product
reformulation, noting that each time a food producer needs to change
the specifications of a product, it can take up to three years and cost
as much as $750,000 per item. This respondent was concerned that some
manufacturers may choose to stop making school-specific items instead
of reformulating their products.
Proposed Approach: Product-Based Limits
Over 86,000 respondents, including 96 unique comments, supported
the proposed product-based limits in general; comment counts specific
to each product-based limit are detailed in each product-based comment
summary section, below. A school district suggested that product-based
limits would provide helpful benchmarks for initial added sugars
reductions. An industry respondent asserted that product-based limits
would help reduce added sugars in breakfast items. An individual
agreed, stating that limiting high-sugar breakfast items would support
children in the classroom as well. This respondent explained that
breakfasts that are high in sugar do not provide sustainable energy for
students to focus in the classroom. A professional organization stated
that product-based limits would promote ``progress toward more nutrient
dense'' foods, and that the phased-in approach would allow schools and
manufacturers time to ``learn and adapt.''
Other respondents supported the product-based limits but did not
support the weekly limit. For example, an advocacy group affirmed that
the product-based limits would be easier for schools operationally,
noting that CACFP sponsoring organizations have successfully
implemented product-based limits for breakfast cereals and yogurt. This
advocacy group stated that product-based limits would better align
child nutrition program requirements and reduce administrative burden.
A State agency suggested that the proposed product-based limits would
help to educate the public about the health impacts of added sugars.
However, this State agency did not support the weekly limit, asserting
that it may be burdensome for schools. A school district also preferred
the product-based limits over the weekly limit, suggesting that
product-based limits would be easier to implement after schools
overcome the initial burden of identifying compliant products. An
advocacy group agreed, maintaining that the product-based limits are
necessary to reduce added sugars at breakfast, but noting that the
weekly limit would ``negatively impact school meal menu planning.'' An
industry respondent described the product-based limits as ``appropriate
tools to reduce consumption of added sugars,'' and argued that an
additional weekly limit would be ``duplicative.''
About 100 respondents, including 81 unique comments, opposed
proposed product-based limits in general; comment counts specific to
each product-based limit are detailed in each product-based comment
summary section, below. A food service director opposed the proposed
limits for school breakfast specifically, describing breakfast as an
important meal and suggesting that some added sugar encourages students
to eat breakfast. An individual stated that product-based limits would
decrease the availability of grab-and-go meals and would reduce overall
breakfast participation. Several respondents, including industry
respondents, school districts, and dietitians, added that product-based
limits would hinder alternative breakfast models (e.g., breakfast in
the classroom) because pre-packaged, grain-based desserts are more
commonly offered in these models. A dietitian claimed that even though
some popular whole grain products served at breakfast contain added
sugars, the nutritional benefits of these foods ``outweigh the sugar
content.'' A State agency agreed that breakfast cereals, yogurt, and
flavored milks provide ``numerous essential nutrients'' and raised
concerns about the potential negative impacts of decreased consumption
under the product-based limits. A few school districts expressed
concerns about increased costs. An industry respondent asserted that
product-based limits are ``too prescriptive and unnecessarily
complicate the nutrition standards.'' Instead of requiring the product-
based limits, a State agency suggested USDA partner with K-12 food
manufacturers to work toward implementation of voluntary, product-based
added sugars limits.
Proposed Product-Based Limit: Grain-Based Desserts at Breakfast
Over 900 respondents supported the proposed limit for grain-based
desserts in school breakfast, including 20 unique comments. A parent
applauded limits for grain-based desserts at breakfast, suggesting that
they would ``encourage more nutrient-dense choices.'' An individual
supported limits on grain-based desserts, asserting that schools can
``find healthier ways to serve breakfast.'' A school nutrition
professional agreed, supporting a limit on ``desserts [and] sweet
entr[eacute]es during breakfast.'' An advocacy group explained that
applying the current school lunch limit for grain-based desserts to
school breakfasts (i.e., the ability to offer up to 2 ounce equivalents
of grain-based desserts per week) would help simplify menu
requirements.
Over 700 respondents opposed the proposed limit for grain-based
desserts in school breakfast, including 85 unique comments. Many
opponents stated that grain-based desserts are popular among students
and that limiting these foods may impact student breakfast
participation. An individual raised concerns that schools have few
options at breakfast and reducing grain-based desserts would further
limit menus. An advocacy group noted that currently, schools offer a
variety of grain items at breakfast to promote participation, for
example, by including whole grain-rich toaster pastries and whole
grain-rich cereal bars daily, along with whole grain donuts and whole
grain cinnamon rolls on occasion. This respondent maintained that the
proposed rule would severely limit schools' ability to serve these
popular items at breakfast. A school district noted that convenient,
on-the-go grain items are important options for students who attend
morning tutoring to recover from learning loss following the COVID-19
pandemic.
Several respondents cited confusion about the definition of
``grain-based dessert'' as described in Exhibit A: Grain Requirements
for Child Nutrition Programs of the Food Buying Guide.\36\ An industry
respondent argued that under current policy, grain-based desserts are a
``list of foods with no explanation of what sets them apart from other
grain foods.'' This respondent noted this list includes a wide range of
foods that can differ

[[Page 31973]]

vastly in added sugars content. Additionally, this respondent suggested
that under the proposed rule, manufacturers would have little incentive
to reduce added sugars in grain-based desserts, since these products
would still face ``strict limitations,'' regardless of their added
sugars content. A State agency noted that items such as cereal bars are
not typically identified as ``desserts'' outside of the child nutrition
programs and encouraged USDA to reevaluate the food items that are
considered grain-based desserts. A form letter campaign agreed,
pointing out that many items considered to be grain-based desserts are
offered as part of a balanced breakfast at school or at home. A State
agency requested clarification on what the proposed grain-based dessert
limit for school breakfast would mean for preschool meals, noting that
the meal pattern currently does not allow any grain-based desserts to
be offered to preschoolers.
---------------------------------------------------------------------------

\36\ U.S. Department of Agriculture, Food Buying Guide for Child
Nutrition Programs. Available at: <a href="https://foodbuyingguide.fns.usda.gov/Appendix/DownLoadFBG">https://foodbuyingguide.fns.usda.gov/Appendix/DownLoadFBG</a>. See: Section 4--
Grains, Exhibit A: Grain Requirements for Child Nutrition Programs,
for a list of grain-based desserts.
---------------------------------------------------------------------------

Proposed Product-Based Limit: Breakfast Cereals
Over 900 respondents supported the proposed product-based added
sugars limit for breakfast cereals, including 20 unique comments. Many
respondents supported the proposal for breakfast cereals without
providing additional rationale. A State agency affirmed that there are
plenty of breakfast cereals that already meet the proposed product-
based limit. This State agency also suggested that the implementation
date would provide sufficient time for manufacturers to decrease added
sugars in non-compliant breakfast cereals. Another State agency
supported limiting added sugars in breakfast cereals but recommended
increasing the limit to 8 or 9 grams per dry ounce, instead of the
proposed 6 grams per dry ounce.
About 50 respondents opposed the proposed product-based limit for
breakfast cereals, including 33 unique comments. A school nutrition
professional and several school districts expressed concern that the
product-based limit for breakfast cereals would severely limit variety.
An industry respondent claimed that they provide numerous breakfast
cereal options that are inexpensive, convenient, and popular with
students, and argued that the product-based limit is not necessary
because the weekly limit would effectively limit breakfast cereals that
are high in added sugars. This respondent stated that their school
breakfast cereals provide less than 8 grams of added sugars per
serving, but that the product-based limit would limit their options for
schools to only two cereals. A school district argued that the
breakfast cereals that meet the proposed product-based limit are not
preferred by students.
Proposed Product-Based Limit: Yogurt
Nearly 1,000 respondents supported the proposed product-based added
sugars limit for yogurt, including 24 unique comments. An industry
respondent suggested that ``many options on the market meet the
proposed limit'' for yogurt (12 grams of added sugars per 6 ounces).
This respondent noted that manufacturers have greater ability to
formulate yogurts that meet a product-based limit, as opposed to a
weekly limit. Another industry respondent suggested that some yogurts
would meet the proposed product-based limit, while others would not,
potentially requiring reformulation. A parent who supported the
product-based limit suggested that yogurt could be sweetened with fruit
instead of added sugars. A professional organization noted that most
yogurt served in their program already meets the proposed product-based
limit and described it as ``realistic for manufacturers and programs.''
Forty respondents opposed the proposed product-based added sugars
limit for yogurt, including 21 unique comments. A CACFP sponsoring
organization asserted that it would limit the yogurt that program
operators can offer and only allow varieties that ``children will not
want to eat.'' A State agency described the proposed limit as
``confusing,'' noting that most yogurt comes in 4-ounce packages and
schools would need to ``do culinary math'' to determine how to apply
the limit, which was for 6-ounce packages. An industry respondent
suggested that yogurt products should be allowed to have various levels
of sugars so that schools have more flexibility in selecting products.
One school district shared that yogurt varieties that are currently
popular with students at breakfast would not meet the product-based
limit. This respondent raised concerns that, under the proposed limit,
certain varieties of yogurt would be eliminated from their menus and
there would be ``limited choices for replacements.''
Proposed Product-Based Limit: Flavored Milk
Over 900 respondents supported the proposed product-based limit for
flavored milks, including 44 unique comments. A State agency maintained
that they did not expect the flavored milk limit to be an issue, as
dairy suppliers are already working to reduce added sugars in flavored
milks. Another State agency and two professional associations also
supported the proposed limits, and one of these professional
associations noted that most milk producers already meet the proposed
limit. A school district confirmed that flavored milks currently
offered in their district meet the proposed added sugars limit. An
industry respondent suggested that the proposed product-based limit for
flavored milks is ``likely achievable'' but cautioned that some
reformulation efforts to reduce added sugars have started to impact
palatability. An advocacy group recommended applying the added sugars
limits for flavored milks to SMP and CACFP ``to ensure maximum positive
impact on child health.''
Fifty respondents opposed the proposed product-based limit for
flavored milks, all of which were unique comments. A State agency
suggested that the product-based limit for flavored milks ``may not be
necessary and may cause difficulties for schools lacking access to
multiple options.'' This State agency pointed to existing efforts in
the dairy industry to reduce added sugars in flavored milks, including
the International Dairy Foods Association's recent commitment to lower
added sugars in flavored milks available in schools.\37\ While
acknowledging the great improvement, the State agency noted that,
depending on their location, some rural schools may not have access to
flavored milk options that meet the proposed limit. Another State
agency expressed concern about the proposed limit, noting that
producers in their State currently offer a fat-free, flavored milk with
11 grams of added sugars per 8 fluid ounces. This State agency
questioned whether it would be worth the financial burden for this
producer to reformulate their product to reduce added sugars by 1 gram
and meet the proposed 10 grams of added sugars per 8 fluid ounces
limit. Another State agency mentioned a milk distributor

[[Page 31974]]

that currently has a flavored milk option with 13 grams of added sugars
per 8 fluid ounces. Numerous respondents provided additional input on
flavored milks, which is detailed in Section 3A: Flavored Milk.
---------------------------------------------------------------------------

\37\ In April 2023, the International Dairy Foods Association
announced its ``Healthy School Milk Commitment.'' According to a
press release from the International Dairy Foods Association,
``[b]eginning with the 2025-2026 school year, 37 school milk
processors representing more than 90% of the school milk volume in
the United States commit to provide healthy, nutritious school milk
options with no more than 10 grams of added sugar per 8 fluid ounce
serving.'' See: International Dairy Foods Association. IDFA
Announces `Healthy School Milk Commitment' to Provide Nutritious
Milk with Less Added Sugar for Students in Public Schools,
Surpassing USDA Standards. April 5, 2023. Available at: <a href="https://www.idfa.org/news/idfa-announces-healthy-school-milk-commitment-to-provide-nutritious-milk-with-less-added-sugar-for-students-in-public-schools-surpassing-usda-standards">https://www.idfa.org/news/idfa-announces-healthy-school-milk-commitment-to-provide-nutritious-milk-with-less-added-sugar-for-students-in-public-schools-surpassing-usda-standards</a>.
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Product-Based Limits: Impact on Child and Adult Care Food Program
USDA also received feedback from the CACFP community about how the
proposed product-based limits for breakfast cereals and yogurt would
affect CACFP. Several respondents opposed any changes to current CACFP
total sugars limits, citing the potential burden of implementing the
change and the operational differences between school meals and CACFP.
For example, an advocacy group suggested that USDA's review of
breakfast cereals and yogurt, which focused on products for K-12
schools, did not necessarily reflect the yogurt products available to
CACFP operators. An industry respondent agreed, adding that there may
be ``little to no demand for these products in grocery stores,'' and
products that are commonly served in schools may not be available in
the broader food supply. Another industry respondent suggested that the
proposed change for yogurt could impact the type of yogurt available in
CACFP, resulting in ``less preferred yogurt types'' offered in the
Program.
An advocacy group asserted that making major changes to CACFP
nutrition requirements to ``streamline'' work for schools is ``a
mistake'' and recommended USDA further engage the CACFP community prior
to finalizing the proposed breakfast cereal and yogurt added sugars
limits in CACFP. This respondent added that CACFP providers use other
Federal assistance programs, rather than school meals, as their point
of reference. Another advocacy group noted that for breakfast cereals,
the proposed change from 6 grams of total sugars per dry ounce to 6
grams of added sugars per dry ounce would effectively increase the
total sugar allowance. This respondent raised concerns about children's
health and did not support what they considered to be a more lenient
requirement. A State agency suggested applying the current CACFP total
sugars limits for breakfast cereals and yogurt to school meals, instead
of finalizing the proposed changes.
Other respondents supported applying the added sugars limits for
breakfast cereals and yogurt to CACFP. An industry respondent supported
transitioning total sugars limits to added sugars limits, arguing that
it ``appropriately reflects updated nutrition guidance.'' A dietitian
noted that CACFP operators have successfully implemented total sugars
limits and supported updating to added sugars limits because added
sugars are now consistently listed on the Nutrition Facts label. An
advocacy group agreed, suggesting that the updated Nutrition Facts
label provides the information CACFP providers would need to select
products, adding that there are numerous products in the marketplace
that meet the proposed added sugars limits. Another advocacy group
suggested that applying the proposed change to CACFP ``will simplify
standards for both industry and program operators.''
A form letter campaign supported the product-based limit for
breakfast cereals only if CACFP providers can continue to use a list of
allowable products provided by the Women, Infant and Children (WIC)
Program to identify breakfast cereals that are allowed in the CACFP.
Respondents explained that each State agency administering the WIC
program provides a list of allowable foods (WIC list) that meet program
nutrition requirements. A few advocacy groups highlighted the
importance of the WIC list, with one noting that the majority of CACFP
providers shop in retail stores and use the WIC list to easily identify
cereals that meet CACFP total sugars requirements. A State agency
agreed, describing the WIC list of approved breakfast cereals as ``an
important resource used by both the State agency and CACFP sponsoring
organizations.'' An advocacy group also highlighted the importance of
collaboration between CACFP and WIC, including shared materials and
messaging. An individual suggested that USDA develop its own ``approved
list'' of breakfast cereals and yogurt that child care providers
participating in CACFP could use to easily identify compliant products.
Respondents also offered additional suggestions for how USDA could
support the CACFP community in implementing the proposed changes, if
finalized. An advocacy group recommended that USDA provide tools and
resources to help CACFP providers identify allowable products. A CACFP
sponsoring organization encouraged USDA to provide flexibility to
operators and sites as they transition from current total sugars limits
to the proposed added sugars limits. An advocacy group noted that CACFP
sponsoring organizations would need ample time to retrain providers and
suggested that USDA provide additional funding to support nutrition
education, training, and material revisions at the local level. Another
advocacy group noted that family child care providers often run small
programs where they take on multiple roles including owner, caregiver,
meal preparer, and more. This respondent suggested that child care
providers may need additional time to implement the added sugars limits
for breakfast cereals and yogurt, noting that the changes will require
time, training, money, and technical assistance. However, a State
agency suggested that the proposed rule would provide adequate lead
time for CACFP operators to successfully implement the changes, noting
that the State would have time to train sponsoring organizations and
update technical assistance resources. However, the State agency
recommended that USDA implement the CACFP changes at the beginning of
the fiscal year, rather than the beginning of the school year, to match
the start of the CACFP program year.
Proposed Approach: Weekly Limits
Over 76,000 respondents, including 114 unique comments, supported a
weekly added sugars limit in the school lunch and breakfast programs--
the second step of USDA's proposal to reduce added sugars. A dietitian
supported the weekly limit, stating that it gives ``menu planners
creative freedom'' to develop a menu that incorporates foods that are
currently available in the K-12 market. Another respondent explained
that the weekly limit would give schools flexibility to occasionally
offer foods that are higher in added sugars, provided they are balanced
with foods that are lower in added sugars throughout the week.
Some respondents supported a weekly limit only and did not support
the product-based limits. For example, an advocacy group suggested that
a weekly limit would be easier to monitor, require less training, and
provide more flexibility for operators, while still reducing overall
intake of added sugars. This respondent suggested that all foods can
fit into a healthy diet, just in different amounts and frequencies. An
industry respondent also supported the weekly limit only, claiming that
product-based limits would cause additional burden to monitor and limit
student choice, which could reduce participation. Another industry
respondent agreed, suggesting that a 10 percent weekly limit in lunch
and breakfast programs provides flexibility for operators, maintains
options for students, and gives manufacturers time to reformulate. This
respondent argued that the product-based limits would ``reduce
opportunities for whole grain intake'' due to the limitation of popular

[[Page 31975]]

grains items that contain added sugars, such as granola bars. A school
district indicated that the weekly limit would be easier to implement
and track and allow schools to decide ``where to spend'' their added
sugars in lunch and breakfast menus. An advocacy group supported the
weekly limit and suggested the two-step approach would ``cause a lot of
confusion and be difficult to manage and document.''
Forty-eight respondents opposed the weekly limit, the majority of
which were unique comments. A school district argued that the weekly
limit would ``significantly increase administrative burden.'' A State
agency agreed, citing specific concern about the potential burden on
small, rural districts that do not use menu planning software and may
not have the staff capacity to calculate additional dietary
specifications. An industry respondent suggested that a weekly limit
may ``inadvertently lower the amount of yogurt and dairy'' offered in
school meals, which they asserted could decrease ``the nutritiousness
of meals.''
Two-Step Approach: Product-Based and Weekly Limits
Some respondents supported both steps of USDA's phased-in approach
to reduce added sugars in school meals and emphasized the importance of
the product-based and weekly limits. An advocacy group strongly
supported both proposals, noting that product-based limits alone would
not achieve dietary recommendations for added sugars. This respondent
emphasized the importance of implementing a weekly limit, while also
pointing out the benefits of product-based added sugars limits--
particularly for foods that are commonly served in school meals. A
professional association also supported the two-step approach,
suggesting that it would allow ``schools, food manufacturers, and
distributors time to learn and adapt.'' An advocacy group supported
both added sugars proposals, but acknowledged that between the two, a
weekly limit would be ``more effective'' to meet the Dietary Guidelines
recommendations. Another advocacy group described USDA's two-step
approach as ``balanced and practical'' and supported phasing in the
product-based limits, followed by the weekly limit. A group of Federal
elected officials applauded USDA's proposed ``gradual, phased-in
approach'' to reducing added sugars in school meals. An advocacy group
added that the ``combination of product-based and weekly limits are
especially important'' given children's current, excessive intake of
added sugars.
Proposed Implementation Timeframes
Over 300 respondents addressed the proposed implementation
timeframes, including 96 unique comments. Several respondents suggested
that USDA provide schools and industry more time for implementation. A
dietitian and a school nutrition director asserted that the product-
based limits do not provide manufacturers enough lead time and
emphasized that reformulating products takes time and money. A school
district stated that they ``have faith'' that manufacturers can reduce
added sugars over time and students will adapt, but they do not think
two years is adequate. This respondent was concerned about the
potential impact on student participation, noting the importance of
providing breakfast cereals and other food items that students enjoy. A
respondent who supported the proposals expressed concern that the
implementation timeline may not be long enough for small or rural
school districts that rely on smaller food distributors. One State
agency conducted a survey of child nutrition directors and NSLP
stakeholders and found that 75 percent of respondents did not feel the
proposed implementation dates were sufficient due to limited product
availability, supply chain challenges, and student acceptance.
A dietitian recommended lengthening the implementation timeline and
providing funding to manufacturers. This respondent was concerned that
manufacturers would ``quit the K-12 segment if they cannot comply''
with the limits. An industry respondent argued that, if manufacturers
do not have additional lead time, student participation may decrease
due to ``inadequate options.'' This respondent added that ``the school
nutrition ecosystem is simply too fragile'' to follow the proposed
timeline. A joint response from three industry respondents argued that
the proposed implementation dates would not provide enough time for
reformulation that ensures product quality and safety, given the
functional role sugar plays as an ingredient (e.g., preventing
spoilage, improving texture, and adding bulk). This response raised
concerns about student acceptability, student participation, and food
waste under the proposed implementation timeline. A dietitian suggested
that if manufacturers are not able to create products to meet the
proposed product-based limits, then the implementation dates should be
delayed.
An industry respondent maintained that added sugar reductions must
be tailored for each individual product, suggesting that timelines can
range from 12 to 16 months. This respondent added that schools
typically solicit bids for products one year in advance, adding at
least 12 months to the process. This industry respondent noted that
additional time for implementation would allow schools to update meal
planning databases, provide time to develop menu planning tools, and
help students gradually adjust to foods containing less added sugars. A
State agency relayed that manufacturers have expressed that SY 2027-
2028 would be a more realistic timeframe to implement breakfast cereal
and yogurt limits. An advocacy group acknowledged that timelines for
research and development vary and suggested that K-12 food companies
typically report needing 3 years to reformulate products. A State
agency also recommended providing at least 3 years after release of the
final rule to allow adequate time to update trainings, materials,
product formulations, and school menus. An individual suggested that
industry would need a minimum of 3-5 years to reformulate or develop
food items that meet the proposed limits. A State agency and an
industry respondent expected product reformulation to take up to 5
years. Another industry respondent asserted that the proposed
implementation dates for added sugars are too short and suggested the
reductions occur more gradually over the next 20 years or more.
Other respondents suggested the proposed implementation timeframes
were adequate, and some recommended accelerating timeframes in the
interest of children's health. An advocacy group affirmed that phased-
in implementation would allow adequate time to implement the new
requirements. Another advocacy group recommended implementing the
weekly added sugars limit alongside the product-based limits in SY
2025-2026. A State agency also suggested implementing the product-based
limits and the weekly limit at the same time, suggesting that 12-18
months would be a reasonable amount of time for industry and schools to
prepare for changes. A parent suggested implementing the added sugars
limits on a quicker timeframe, suggesting that the limits ``need to
happen now'' due to what they consider to be an excessive amount of
sugar in school meals. An advocacy group agreed, suggesting that USDA
implement the added sugars limits ``as soon as is feasible,'' noting
that these updates will be beneficial to children's health. Similarly,
a second advocacy group stated that USDA

[[Page 31976]]

should implement the weekly limit in the school year immediately
following release of the final rule. A local government supported both
added sugars limits and the proposed implementation timeline; this
respondent did not recommend extensions ``due to the urgency needed in
reducing consumption of added sugars among children.'' An advocacy
group and a few individuals asserted that ``there is no credible reason
for USDA to delay achieving the reduction in sugar consumption,''
requesting implementation of the added sugars limits by fall 2023.
A school nutrition professional suggested that the proposed
implementation date for the product-based limits would provide ``plenty
of time'' but claimed the weekly limit would be ``much harder'' to
achieve. This respondent noted that many rural districts currently do
not have nutrition software to facilitate implementation of a weekly
limit for added sugars. Similarly, a dietitian suggested that the
implementation date for product-based limits is achievable, provided
that the final rule is published at least one year in advance of
implementation (by July 1, 2024). The respondent suggested that this
timing would allow USDA and State agencies to provide technical
assistance and training. However, this respondent recommended delaying
implementation of the weekly added sugars limit to allow additional
time for product reformulation and menu revisions.
One respondent encouraged USDA to remove the product-based limits
and implement the weekly limit no later than 2025. By accelerating
implementation of the weekly limit in school lunch and breakfast
programs, this respondent suggested USDA could support healthier meals
for children who are currently in school. An industry respondent also
recommended removing the product-based limits while maintaining the
proposed implementation of SY 2027-2028 for the weekly limit.
Alternative Approaches Suggested by Comments
Some respondents offered alternatives to the proposals, or
suggested changes. For example, an industry respondent suggested that
USDA determine the product-based limits using the average added sugars
content of currently available products. A professional organization
recommended that USDA establish total sugars limits, rather than added
sugars limits, for breakfast cereals and yogurt because of the
naturally occurring sugar content of those foods. An individual
suggested that USDA reduce sugar content in school breakfast by
following Smart Snacks in School requirements for sugar.\38\ A few
advocacy groups suggested USDA require or recommend product-based
limits for condiments and toppings, noting that these products
contribute to children's intake of added sugars, especially at
breakfast.
---------------------------------------------------------------------------

\38\ Regulations for competitive food service and standards are
found at 7 CFR 210.11.
---------------------------------------------------------------------------

Some respondents suggested alternatives to the proposed limit on
grain-based desserts in school breakfasts. A professional organization
and another respondent suggested that USDA prohibit (rather than limit)
grain-based desserts in the school meal programs to promote more
nutrient dense foods. A State agency recommended phasing in the grain-
based dessert limit by age/grade group, starting with K-5 children.
This State agency suggested this could help prevent a drastic drop in
participation among older students. A school nutrition professional
suggested that grain-based desserts should not be defined by the
product name, but by the amount of added sugars in the product. An
advocacy group also encouraged USDA to establish a quantitative added
sugars limit for grain-based desserts and suggested further reducing
the proposed added sugars limit for breakfast cereals.
An industry respondent suggested that if yogurt and flavored milks
are subject to product-based limits, they should be excluded from the
overall weekly limit. This respondent expressed concern that counting
yogurt and flavored milks in the overall weekly limit could create
``perverse and unintended incentives'' to remove these items from
meals. Another industry respondent suggested that USDA exempt the added
sugars in dried cranberries from the weekly added sugars limit. This
respondent argued that not providing an exemption for cranberry
products could discourage the consumption of products like cranberries
that include added sugar for processing and palatability.
A few respondents offered alternative suggestions for the weekly
added sugars limit. For example, a school nutrition director suggested
starting with a higher weekly dietary specification, such as 15
percent, and adjusting the percentage down as needed. This respondent
stated that a more gradual approach for the weekly limit would mirror
the proposed sodium reductions. Similarly, an advocacy group
recommended removing the product-based limits and instead, gradually
phasing in the weekly limit for lunch and breakfast meals. This
respondent recommended starting in SY 2025-2026 with a dietary
specification limiting meals to less than 25 percent of calories from
added sugars, and then implementing a 10 percent limit in SY 2027-2028.
A school district supported finalizing a 25 percent weekly limit in SY
2026-2027 and did not recommend further reductions. Another school
district recommended a weekly dietary limit of 35 percent of calories
from added sugars, with no product-based limits, beginning SY 2025-
2026.
However, an advocacy group stated that USDA ``should reject any
calls to set a limit higher than 10 percent'' because most children
would benefit from a diet with even fewer added sugars, as low as 4 to
8 percent. Another respondent argued that the proposed 10 percent limit
is ``still very high.'' An advocacy group agreed, recommending that
USDA take ``swifter and more far-reaching action'' by implementing a 6
percent weekly limit for added sugars. A local government recommended
that USDA apply the limit to both meals together (breakfast and lunch)
instead of applying the 10 percent weekly limit to each meal
separately. This respondent suggested this would increase the
feasibility of implementation, since breakfast foods typically
contribute larger amounts of added sugars. A school nutrition
professional suggested incentivizing--but not requiring--schools to
meet the 10 percent weekly limit.
Several respondents, including a national organization representing
tens of thousands of school nutritional professionals, recommended that
USDA make it easier for schools to offer meats/meat alternates in place
of grains at breakfast, which they argued would support reducing added
sugars in school breakfasts. This includes options suitable for grab-
and-go breakfast, such as protein-rich breakfast sandwiches and wraps.
A school district suggested many schools ``would love to be able to
offer eggs and sausage, or fruit and yogurt parfaits for breakfast,''
and requested that USDA remove the requirement to offer a minimum
amount of grains daily for breakfast. A dietitian recommended that USDA
require a meat/meat alternate at breakfast. A few industry respondents
maintained that the added sugars limit would ``create a drive in the
market to increase the protein content of breakfast items,'' noting
that the current grain minimum and cost constraints present a barrier
to offering meats/meat alternates at breakfast. Additional comments on
this topic, received in response to a prior

[[Page 31977]]

rulemaking, can be found in Section 6: Meats/Meat Alternates at
Breakfast.
Other Comments About Added Sugars
Respondents also submitted other comments about added sugars,
including comments related to sweeteners, which respondents used a
variety of terms to describe. A school nutrition professional raised
concerns that manufacturers would replace added sugars with
``artificial sweeteners'' when reformulating products to meet the
proposed limits. Similarly, a dietitian stated that while they support
reducing added sugars, food manufacturers would face challenges to meet
this requirement without using ``sugar substitutes.'' A school
nutrition professional suggested prohibiting ``non-caloric sweeteners
(both natural and artificial)'' in school meals, noting that there is
limited research on their long-term effects and expressed concern these
additives may cause stomach problems in young children. An individual
voiced similar concerns about ``low calorie sweeteners'' and suggested
prohibiting or labeling products so that parents or students can avoid
those food items, if desired.
A school district requested that the added sugars limits be
accompanied by an increase in reimbursement rates. This respondent
anticipated an increase in product costs as added sugars are replaced
with more expensive and healthier ingredients. One industry respondent
also shared financial concerns, suggesting that schools would need to
adjust menus by adding food items or increasing portion sizes to meet
calorie ranges if added sugars are reduced. This respondent suggested
one solution to this challenge would be to increase Federal funding.
Another industry respondent described the ``chronic underfunding of
school breakfasts'' and encouraged adequate resources to facilitate
schools offering nutritious breakfast items, such as fresh fruits and
vegetables. Although this respondent acknowledged their comment was
outside the scope of this rulemaking, they emphasized that funding
plays an important role in the types of foods that schools can offer
students.
A few advocacy groups encouraged USDA to provide sufficient time,
menu planning resources, and technical assistance to support
implementation of the added sugars limits. Specifically, some
respondents suggested USDA update its Team Nutrition resources for
reducing sugars in CACFP, if this requirement is finalized. A State
agency requested that USDA update Administrative Review guidance and
assessment tools, along with guidance on how schools can assess
compliance with the weekly limit. An advocacy group recommended that,
during implementation, schools should not be penalized and suggested
that USDA prioritize additional technical assistance and training for
schools that are struggling with compliance. A State agency provided
similar input, suggesting that USDA provide schools a ``grace period''
for corrective actions during the first Administrative Review cycle,
following implementation of the added sugars limits.

Final Rule

This final rule codifies the proposed added sugars limits in the
school lunch and breakfast programs, as follows:
<bullet> Product-based limits: By SY 2025-2026, schools must
implement quantitative limits for breakfast cereals, yogurt, and
flavored milks. As explained below, this rule does not finalize the
proposed product-based limit for grain-based desserts at breakfast. The
product-based limits that are finalized in this rule are as follows:
<bullet> Breakfast cereals are limited to no more than 6 grams of
added sugars per dry ounce.
<bullet> Yogurt is limited to no more than 12 grams of added sugars
per 6 ounces (2 grams of added sugars per ounce).
<bullet> Flavored milk is limited to no more than 10 grams of added
sugars per 8 fluid ounces. Flavored milk sold as a competitive food for
elementary school students will follow the 10 grams of added sugars per
8 fluid ounce limit, while flavored milk sold as a competitive food for
middle and high school students will be limited to 15 grams of added
sugars per 12 fluid ounces.\39\
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\39\ For clarification, the added sugars limit for flavored milk
sold as a competitive food in middle and high schools due to the
larger serving size. The serving size for milk offered as part of a
reimbursable meal is 8 fluid ounces. Milks sold to middle and high
school students as a competitive food may be up to 12 fluid ounces.
Milks sold to elementary school students as a competitive food may
be up to 8 fluid ounces, and so will follow the 10 grams of added
sugars per 8 fluid ounce limit.
---------------------------------------------------------------------------

<bullet> Weekly dietary limit: By SY 2027-2028, schools must
implement a dietary specification limiting added sugars to less than 10
percent of calories per week in the school lunch and breakfast
programs; this weekly limit will be in addition to the product-based
limits described above.
As proposed, this final rule also updates CACFP total sugar limits
for breakfast cereals and yogurt to align with the product-based added
sugars limits established for NSLP and SBP as stated above. Because
CACFP operates on a fiscal year calendar, these changes must be
implemented by October 1, 2025. For CACFP, the product-based added
sugars limits are as follows:
<bullet> Breakfast cereals are limited to no more than 6 grams of
added sugars per dry ounce.
<bullet> Yogurt is limited to no more than 12 grams of added sugars
per 6 ounces (2 grams of added sugars per ounce).
The existing total sugars limits for breakfast cereals and yogurt
in CACFP will remain in place until October 1, 2025, when the new added
sugars limits must be implemented. With State agency approval, CACFP
operators may choose to implement the added sugars limits for breakfast
cereals and yogurt early.
Two-Step Approach To Reduce Added Sugars in School Meals
USDA is committed to improving the nutritional quality of school
meals by establishing requirements that align with the goals of the
most recent Dietary Guidelines. USDA also acknowledges stakeholders'
concerns about added sugars in school meals and the harmful effects on
children's health. The two-step approach to reducing added sugars
finalized in this rule is expected to set schools up for success by
gradually decreasing added sugars over the next several years. USDA
acknowledges that, as noted in public comments, program operators need
sufficient time to prepare and plan menus to meet the new added sugars
limits. By first phasing in the product-specific limits for breakfast
cereals, yogurt, and flavored milk, USDA expects that schools will be
better positioned to successfully meet the weekly limits for added
sugars, which will take effect two school years after the effective
date of the product-based limits.
USDA intends for the product-based limits for breakfast cereals,
yogurt, and flavored milk to have a meaningful impact on the added
sugars offered in school meals. However, USDA recognizes that there are
other foods offered in school meals that contribute to children's
overall intake of added sugars, which makes the weekly dietary limit an
important second step to align school meals more closely with the goals
of the Dietary Guidelines. For example, USDA expects that added sugars
in condiments and toppings will be addressed through the weekly added
sugars limit, upon implementation. While USDA appreciates public
comments recommending product-based limits for condiments and toppings,
such limits were not included in the proposed rule and this final rule
does not establish product-based added

[[Page 31978]]

sugars limits for these items. USDA expects that the overall weekly
limit will help to reduce the amount of added sugars offered in
condiments and toppings. Additionally, although this rule does not
finalize the grain-based dessert limit at breakfast, USDA expects that
schools will select grains with less added sugars to meet the weekly
added sugars limit at breakfast and, as explained below, USDA will
provide resources to support more nutrient-dense choices at breakfast.
USDA is also interested in additional stakeholder input on how to
improve and simplify its grain-based desserts requirements and will
solicit stakeholder input on grain-based desserts in the coming months.
USDA also acknowledges respondent concerns regarding the
palatability of meals with less added sugars and related concerns about
plate waste and student participation. However, USDA expects that
gradually phasing in these requirements will give schools time to
adjust menus and help children gradually adapt to meals with fewer
added sugars over time.
Added Sugars in the Child and Adult Care Food Program
For consistency, this final rule applies the product-based added
sugars limits for breakfast cereals and yogurt to the CACFP. Based on
public comment, USDA has adjusted the implementation date for CACFP to
follow the program calendar, which operates on a fiscal year rather
than a school year. Effective October 1, 2025, the added sugars limits
will replace the current total sugar limits for breakfast cereals and
yogurt in CACFP. The existing total sugars limits for breakfast cereals
and yogurt in CACFP will remain in place until October 1, 2025, when
the new added sugars limits take effect. However, with State agency
approval, CACFP operators may choose to implement the added sugars
limits for breakfast cereals and yogurt early.
As mentioned in public comments, CACFP operators have successfully
implemented product-based sugar limits, and this rule updates these
limits from total sugars to added sugars based on Dietary Guidelines
recommendations. Although some public comments recommended continuing
with total sugars limits, that approach would not be consistent with
the Dietary Guidelines recommendations. And, as noted, added sugars
information is now available on the Nutrition Facts label.\40\ USDA
recognizes that many stakeholders would like more consistent
requirements across child nutrition programs; this final rule supports
USDA's efforts to better align program requirements. Additionally, in
response to public comments, USDA clarifies that the per-ounce limit
for yogurt will be 2 grams of added sugars. While this clarification
applies to NSLP, SBP, and CACFP, it is most relevant to CACFP, where
smaller portions may be offered to younger participants and operators
will more often need to assess compliance with the added sugars limit
in serving sizes that are smaller than 6 ounces.
---------------------------------------------------------------------------

\40\ Food Labeling: Revision of the Nutrition and Supplement
Facts Labels (81 FR 33741, May 27, 2016). Available at: <a href="https://www.federalregister.gov/documents/2016/05/27/2016-11867/food-labeling-revision-of-the-nutrition-and-supplement-facts-labels">https://www.federalregister.gov/documents/2016/05/27/2016-11867/food-labeling-revision-of-the-nutrition-and-supplement-facts-labels</a>. See
also: 21 CFR 101.9(c)(6)(iii).
---------------------------------------------------------------------------

CACFP operators provide vital nutrition that contributes to the
wellness of child and adult participants. USDA recognizes and
appreciates the important role CACFP operators play in helping child
and adult participants develop and sustain healthy habits in all stages
of life. USDA is committed to ensuring that CACFP operators have the
technical assistance and resources they need to be successful,
including implementing the changes in this rule.
Alignment With WIC Food Package Standards
In April 2024, USDA finalized revisions to the WIC food packages to
incorporate recommendations from the National Academies of Science,
Engineering, and Medicine (NASEM) in its 2017 scientific report,
``Review of WIC Food Packages: Improving Balance and Choice,'' and to
align the food packages with the Dietary Guidelines for Americans,
2020-2025. The WIC final rule, Special Supplemental Nutrition Program
for Women, Infants and Children (WIC): Revisions in the WIC Food
Packages,\41\ updated limits on total sugars, consistent with
recommendations in the NASEM report. This included establishing limits
on added sugars in breakfast cereals and yogurt that are consistent
with the limits in this final rule. CACFP operators may use any State's
WIC list to identify breakfast cereals and yogurt that may be offered
in CACFP. Both the WIC final rule and this final rule share the common
goal of reducing added sugars intake among child and adult participants
and promoting healthy dietary patterns. This cross-program alignment of
product-based limits for breakfast cereals and yogurt responds to
public comments that highlighted the benefits of allowing use of the
WIC list in CACFP by allowing CACFP providers to use the WIC list to
identify allowable breakfast cereals and yogurt. It also responds to
public feedback requesting that USDA streamline requirements across its
nutrition assistance programs.
---------------------------------------------------------------------------

\41\ Special Supplemental Nutrition Program for Women, Infants,
and Children (WIC): Revisions in the WIC Food Packages (April 2024).
Available at: <a href="https://www.fns.usda.gov/wic/fr-041824">https://www.fns.usda.gov/wic/fr-041824</a>.
---------------------------------------------------------------------------

Additional Feedback Received in Public Comments
USDA appreciates public comments on alternative approaches for
reducing added sugars in school meals. A few respondents suggested a
stepwise approach for the weekly added sugars limit; for example, by
starting with 15 percent and then moving to a 10 percent weekly limit.
The intent of the product-based limit is to provide schools with a path
toward reaching the 10 percent weekly limit. Other respondents
recommended a weekly limit below 10 percent; however, a weekly limit
below 10 percent would go beyond recommendations in the current Dietary
Guidelines. In this final rule, USDA maintains the proposed weekly
added sugars limit of 10 percent of calories per week, averaged over
the week for lunch and breakfast programs, respectively. In public
comments, some respondents recommended combining lunch and breakfast
menus under the weekly limit. However, because other school meal
pattern requirements (including the other dietary specifications for
calories, saturated fat, and sodium) currently apply by program, USDA
does not view this as an operationally feasible suggestion. Regarding
exemption for certain foods from the weekly limit, USDA has determined
that establishing exemptions may impose unintended burden and
challenges in calculating and monitoring dietary specifications for the
entire menu. This final rule does not exempt any foods from the weekly
added sugars limit for school lunch or breakfast. USDA also
acknowledges comments that recommended adjusting other meal pattern
requirements, such as the calorie limits, as part of this change.
However, USDA did not propose changes to the calorie limits in school
meals and this final rule does not make changes to the calorie limits
for school meals.
Product-Based Limits for Breakfast Cereals, Yogurt, and Flavored Milk
USDA received hundreds of comments regarding the product-based
limits for breakfast cereals, yogurt, and flavored milks. For example,
some respondents recommended increasing the product-based added sugars
limit for breakfast cereals and raised concerns

[[Page 31979]]

about the availability of breakfast cereals that meet the proposed
limit that children enjoy. Similarly, USDA acknowledges respondent
concerns about product availability and the palatability of yogurt and
flavored milks that meet the product-based added sugars limits.
However, USDA agrees with respondents who stated that the added sugars
limits are realistic and that many breakfast cereals, yogurts, and
flavored milks that meet the final limits are or will be available to
schools. As discussed in the Regulatory Impact Analysis, based on data
that USDA collected in 2022, 50 percent of breakfast cereals and 57
percent of yogurts already met the added sugars limits finalized in
this rule in 2022.\42\ Regarding flavored milk, as noted in public
comments, the milk industry has committed to reducing added sugars in
flavored milk to levels that meet the limits finalized in this
rule.\43\ USDA appreciates public comments from industry that noted
significant progress in product reformulation and a variety of products
available in the market that already meet the product-based limits
finalized in this rule. Additionally, the gradual, phased-in approach
used in this rule will provide schools time to implement the changes.
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\42\ USDA Food and Nutrition Service, Office of Policy Support
data collection of nutrition label information from major cereal and
yogurt manufacturer K-12 and food service catalogs. Data were
collected on 191 total cereal products and 110 total yogurt
products.
\43\ In April 2023, the International Dairy Foods Association
announced its ``Healthy School Milk Commitment.'' According to a
press release from the International Dairy Foods Association,
``[b]eginning with the 2025-2026 school year, 37 school milk
processors representing more than 90% of the school milk volume in
the United States commit to provide healthy, nutritious school milk
options with no more than 10 grams of added sugar per 8 fluid ounce
serving.'' See: International Dairy Foods Association. IDFA
Announces `Healthy School Milk Commitment' to Provide Nutritious
Milk with Less Added Sugar for Students in Public Schools,
Surpassing USDA Standards. April 5, 2023. Available at: <a href="https://www.idfa.org/news/idfa-announces-healthy-school-milk-commitment-to-provide-nutritious-milk-with-less-added-sugar-for-students-in-public-schools-surpassing-usda-standards">https://www.idfa.org/news/idfa-announces-healthy-school-milk-commitment-to-provide-nutritious-milk-with-less-added-sugar-for-students-in-public-schools-surpassing-usda-standards</a>.
---------------------------------------------------------------------------

Product-Based Limit for Grain-Based Desserts at Breakfast [Not
Finalized]
As noted above, USDA is not finalizing the proposed limit for
grain-based desserts at breakfast. Public comments raised concerns
about potential negative impacts of the proposal to the SBP, especially
to alternative breakfasts that often contain grab-and-go friendly
items, including grain-based desserts such as breakfast bars and
toaster pastries. Respondents were concerned about the availability and
student acceptance of alternative items that can readily be served in
grab-and-go and other alternative breakfast models. In addition, many
respondents raised questions about the definition of grain-based
desserts as currently used in the NSLP and CACFP \44\ or suggested
alternative approaches to current requirements for those programs.
Under current requirements, which define grain-based desserts by
product type, some grain items that are not classified as grain-based
desserts are higher in added sugars than items that are classified as
grain-based desserts. Some respondents suggested that rather than
defining grain-based desserts by product type, USDA should instead
define grain-based desserts based on the amount of added sugars in
specific products. For these reasons, many respondents recommended that
USDA reconsider the proposal. Therefore, in response to stakeholder
input, USDA is not finalizing the grain-based dessert limit for school
breakfast.
---------------------------------------------------------------------------

\44\ For NSLP, according to 7 CFR 210.10(c)(2)(iii)(C)
(previously 7 CFR 210.10(c)(2)(iv)(C), schools may count up to two
ounce equivalents of grain-based desserts per week toward meeting
the grains requirement at school lunch. For CACFP, according to 7
CFR 226.20(a)(4)(iii), grain-based desserts do not count toward
meeting the grains requirement. The grain-based dessert requirements
for NSLP and CACFP remain in effect under this final rule.
---------------------------------------------------------------------------

USDA is committed to supporting alternative breakfast models, such
as breakfast in the classroom and grab-and-go breakfast, which support
student participation \45\ by making school breakfast more accessible.
USDA also appreciates concerns that the current definition of ``grain-
based dessert'' does not target grain products high in added sugar as
effectively as possible. Although some respondents raised concerns
about product-based limits for breakfast cereals, yogurt, and flavored
milk, those comments did not cite operational constraints for
alternative breakfast models under the proposed limits. Further, as
detailed above, USDA has determined adequate products will be available
to meet the product-based limits for breakfast cereals, yogurt, and
flavored milk finalized in this rule upon implementation.
---------------------------------------------------------------------------

\45\ Amelie A. Hecht, Deborah A. Olarte, Gabriella M.
McLoughlin, Juliana F.W. Cohen, Strategies to Increase Student
Participation in School Meals in the United States: A Systematic
Review, Journal of the Academy of Nutrition and Dietetics, Volume
123, Issue 7, 2023, Pages 1075-1096.e1, ISSN 2212-2672, <a href="https://doi.org/10.1016/j.jand.2023.02.016">https://doi.org/10.1016/j.jand.2023.02.016</a>. Available at: <a href="https://www.sciencedirect.com/science/article/pii/S221226722300103X">https://www.sciencedirect.com/science/article/pii/S221226722300103X</a>.
---------------------------------------------------------------------------

USDA recognizes that reducing grain items that are high in added
sugars is one important strategy to support the phased-in
implementation of the weekly added sugars limit. USDA will continue to
support implementation of alternative breakfast models by highlighting
popular grain items that are low in added sugars and that are grab-and-
go friendly. Schools may also consider offering savory grab-and-go
breakfast items, such as breakfast sandwiches and wraps, to reduce the
overall added sugars content of school breakfasts. As discussed in
Section 6: Meats/Meat Alternates at Breakfast, this rule removes the
minimum grains requirement at breakfast, making it easier for schools
to offer meats/meat alternates at breakfast. In the absence of a grain-
based dessert limit at breakfast, schools may need additional support
and guidance to reduce added sugars at breakfast and meet the weekly
limit upon implementation in SY 2027-2028.
As discussed below, USDA will provide technical assistance to
ensure that schools have the resources they need to reduce added sugars
at breakfast, including meeting the weekly added sugars limit at
breakfast upon implementation. USDA also seeks to support industry in
producing breakfast grains which can be part of menus under the weekly
added sugars limit. The Department will provide voluntary guideposts
for schools and industry to use to assist them in transitioning to the
weekly added sugars limits in SY 2027-2028. This will include resources
that schools may use to identify grain items that are low in added
sugars.
USDA is very interested in and will solicit additional stakeholder
input on improving guidance around grain-based breakfast items. As part
of this effort, USDA will seek stakeholder input on the current grain-
based desserts requirements, alternative approaches to defining and
identifying grains that are high in added sugars, and other creative
ideas for how to address grain-based desserts in the child nutrition
programs. USDA looks forward to receiving stakeholder feedback on this
topic in the coming months.
Sweeteners
This final rule is focused on limits for added sugars, not other
sweeteners used as sugar substitutes or sugar alternatives. USDA
acknowledges respondent concerns regarding sweeteners in child
nutrition programs, referred to in public comments in a variety of
ways, including ``artificial sweeteners,'' ``non-nutritive
sweeteners,'' and ``sugar substitutes.'' \46\

[[Page 31980]]

Sweeteners, like all other ingredients added to food in the U.S. food
supply, must be safe for consumption under the Federal Food, Drug and
Cosmetic Act.\47\ FDA determines if food additives, such as sweeteners,
are safe for their intended use. FDA has approved six sweeteners as
food additives through an extensive evidence-based research
process.\48\ In addition to the six sweeteners approved as food
additives, there are three additional sweeteners that are Generally
Recognized as Safe (GRAS). USDA relies on FDA expertise to safeguard
the food supply because FDA is the Federal agency responsible for
assessing the safety of food additives, food ingredients, and
sweeteners, including artificial sweeteners and nonnutritive
sweeteners. Therefore, under this final rule, there are no restrictions
on sweeteners in school meals, such as the use of sugar substitutes and
nonnutritive sweeteners; this approach aligns with current FDA guidance
for sweeteners. However, at the local level, schools or districts may
opt to limit or remove sweeteners from their school lunch and breakfast
menus, which USDA recognizes that some localities have chosen to do.
Further, in response to stakeholder concerns about sweeteners, in
upcoming studies, USDA will include questions regarding school policies
relating to the use of sweeteners in school meals and will continue to
monitor FDA research and guidance on this issue.
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\46\ Although respondents used a variety of terms in public
comments, USDA will refer to ``sweeteners'' in this final rule,
consistent with FDA terminology. U.S. Food and Drug Administration,
How Sweet It Is: All About Sweeteners, June 9, 2023. Available at:
<a href="https://www.fda.gov/consumers/consumer-updates/how-sweet-it-all-about-sweeteners">https://www.fda.gov/consumers/consumer-updates/how-sweet-it-all-about-sweeteners</a>.
\47\ U.S. Food and Drug Administration, Aspartame and Other
Sweeteners in Food, July 14, 2023. Available at: <a href="https://www.fda.gov/food/food-additives-petitions/aspartame-and-other-sweeteners-food">https://www.fda.gov/food/food-additives-petitions/aspartame-and-other-sweeteners-food</a>.
\48\ Amelie A. Hecht, Deborah A. Olarte, Gabriella M.
McLoughlin, Juliana F.W. Cohen, Strategies to Increase Student
Participation in School Meals in the United States: A Systematic
Review, Journal of the Academy of Nutrition and Dietetics, Volume
123, Issue 7, 2023, Pages 1075-1096.e1, ISSN 2212-2672, <a href="https://doi.org/10.1016/j.jand.2023.02.016">https://doi.org/10.1016/j.jand.2023.02.016</a>. Available at: <a href="https://www.sciencedirect.com/science/article/pii/S221226722300103X">https://www.sciencedirect.com/science/article/pii/S221226722300103X</a>.
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Ongoing Support
USDA is committed to ensuring that child nutrition program
operators have ongoing support and will provide additional technical
assistance and resources to assist schools and child care institutions
and facilities as they prepare to implement and monitor new or updated
requirements. USDA appreciates public comments requesting guidance and
support for monitoring these changes and will update the nutrient
analysis software approved for use in Administrative Reviews so that it
includes a dietary specification for added sugars. As noted above, USDA
will provide resources to support schools and industry in transitioning
to the weekly added sugars limit in SY 2027-2028 and will make these
resources available in time to support procurement for SY 2025-2026.
USDA has already highlighted strategies that schools can use to reduce
added sugars in Best Practices for Reducing Added Sugars at School
Breakfast.\49\ For example, schools can:
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\49\ U.S. Department of Agriculture, Best Practices for Reducing
Added Sugars at School Breakfast, August 4, 2022. Available at:
<a href="https://www.fns.usda.gov/tn/best-practices-reducing-added-sugars-school-breakfast">https://www.fns.usda.gov/tn/best-practices-reducing-added-sugars-school-breakfast</a>.
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<bullet> Reduce how often high-sugar foods and beverages are
offered during the week.
<bullet> Use fruit to sweeten smoothies and yogurt instead of added
sugars.
<bullet> Use cinnamon, vanilla, and other spices or extracts to
enhance recipes with less added sugars.
In public comments, many respondents suggested that meats/meat
alternates be allowed in place of grains to help reduce added sugars in
breakfasts. As discussed in Section 6: Meats/Meat Alternates at
Breakfast, schools may consider this option as a strategy to reduce
added sugars at breakfast, since some grain foods commonly offered in
school breakfasts tend to be higher in added sugars. Schools now have
the option to offer grains, meats/meat alternates, or a combination of
both, to meet the combined food component requirement in the SBP. This
change gives program operators greater flexibility in menu planning and
increases the variety of food items that can be served at school
breakfast, helping to address respondent concerns about meeting the
added sugars limits at breakfast. Local educational agencies may also
consider updating their local school wellness policies with strategies
to reduce added sugars in school meals and snacks. USDA also commends
industry efforts to reduce added sugars in their products, including in
flavored milk. For example, USDA understands that flavored milk
processors have already reduced the average amount of added sugars per
serving of flavored milk since announcing their ``Healthy School Milk
Commitment'' in April 2023.\50\ As suggested by comments, support from
industry is crucial to schools' efforts to continue to offer foods that
are popular with children and also fit within the product-based and
weekly limits phased in under this rulemaking.
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\50\ According to the International Dairy Foods Association,
``When the Commitment was announced in April 2023, flavored milk
products offered in schools contained an average of 8.2 grams of
added sugar per serving. By July 2023, the average had fallen to 7.6
grams of added sugar per serving.'' See: International Dairy Foods
Association, School Milk Is Critical to Child Nutrition--School Year
2023-2024. Available at: <a href="https://www.idfa.org/wordpress/wp-content/uploads/2023/09/Back-to-School-Milk-Fact-Sheet-2023_2024.pdf">https://www.idfa.org/wordpress/wp-content/uploads/2023/09/Back-to-School-Milk-Fact-Sheet-2023_2024.pdf</a>.
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USDA acknowledges public comments that requested increased funding
to support implementation of the added sugars limits. USDA does not
have authority to increase the Federal reimbursement rates for school
meals.\51\ However, USDA launched the HMI Initiative to improve the
nutritional quality of school meals through food systems
transformation, recognition, and technical assistance; the generation
and sharing of innovative ideas and tested practices; and grants. As
part of a cooperative agreement to develop and implement USDA's HMI
Initiative, AFHK is offering Recognition Awards for school food
authorities, including the Breakfast Trailblazer Recognition Award,
that will recognize school food authorities who implement specific
strategies to reduce added sugars in school breakfast menus, implement
an alternative meal service delivery model for breakfast, and use
student engagement techniques and/or culinary techniques to prepare
breakfasts that students enjoy. Public comments noted the importance of
student preferences and participation. Developing healthy dietary
patterns and taste preferences begins at a young age, and gradually
decreasing added sugars in school meals can contribute to developing
student preferences for more nutrient-dense foods, with less added
sugars, as recommended by the Dietary Guidelines. As part of the HMI
Initiative, AFHK will host Healthy Meals Summits, where award
recipients and grantees will share best practices and strategies for
sustaining their nutritional achievements, including successful
strategies to reduce added sugars. The summits will celebrate and
showcase creative strategies for serving healthy, appealing meals and
the best practices will serve as a blueprint for school food
authorities nationwide. USDA will also share strategies and success
stories for reducing added sugars in its communications materials and
will provide guidance and resources to schools working to reduce

[[Page 31981]]

added sugars in school meals in the months ahead.
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\51\ The annual payments and rates adjustments for the National
School Lunch and School Breakfast Programs reflect changes in the
Food Away From Home series of the Consumer Price Index for All Urban
Consumers. See: U.S. Department of Agriculture. Rates of
Reimbursement. Available at: <a href="https://www.fns.usda.gov/cn/rates-reimbursement">https://www.fns.usda.gov/cn/rates-reimbursement</a>.
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Assessing Impact of Added Sugars Limits
USDA recognizes the importance of monitoring progress toward the
new added sugars limits and assessing the effectiveness of the two-step
approach. USDA has a long history of examining the nutritional quality
of school meals through studies such as the School Nutrition and Meal
Cost Study and the School Nutrition Dietary Assessment Study series.
The 2024-2025 National School Foods Study will incorporate added sugars
into this assessment, which is based on an extensive menu survey,
designed to determine the food and nutrient content of school meals and
afterschool snacks, examine compliance with nutrition requirements, and
understand the characteristics of foods and beverages in reimbursable
meals.
These studies also assess actual student dietary intake and overall
diet quality through 24-hour dietary recall interviews. The 2024-2025
study will establish a ``baseline year'' (SY 2024-2025) for examining
the impact of the added sugars and sodium limits included in this
rulemaking.
In accordance with its commitment to regularly monitor how
consistent school meals are with the goals of the Dietary Guidelines,
USDA conducts the School Nutrition and Meal Cost Study on a five-year
cycle, which will provide another comprehensive assessment in SY 2029-
2030, after both the updated sodium limits and added sugars limits have
been fully implemented.
However, to monitor progress and provide data on the effectiveness
of product-based limits as a step toward meeting the overall weekly
added sugars limit, USDA will invest in an additional menu assessment
in SY 2026-2027, between the two School Nutrition and Meal Cost Study
cycles. This nationally representative survey will focus on the foods
and beverages that make up reimbursable meals and allow USDA to examine
the effect of the product-based added sugars limits, which will take
effect in SY 2025-2026. Additionally, this survey will allow USDA to
estimate both added sugars and sodium content of reimbursable school
meals.
Together these studies will provide USDA with critical evidence
about rule implementation, effects, and potential barriers and help
monitor changes in nutrient content of foods over time. This data will
provide invaluable insight into school meal nutrient composition and
student dietary outcomes. In addition, USDA will continue current
practice of using existing data sources--such as the National Health
and Nutrition Examination Survey--to periodically examine other
outcomes, including the relationship between estimated school meal
program participation, diet quality, indicators of nutrition and
health, food consumption patterns, and nutrient intakes. This in turn
can inform future policy and rulemaking.
Accordingly, this final rule codifies the product-based added
sugars limits for breakfast cereals, yogurt, and flavored milk, and
codifies the weekly dietary specification for added sugars in NSLP and
SBP regulations found at 7 CFR 210.10(b)(2)(iii), (c), (d)(1)(iii),
(f)(3), and (h) and 220.8(b)(2)(iii), (c), (d), and (f)(3). These
amendments must be implemented by July 1, 2025, except for the weekly
dietary specification, which must be implemented by July 1, 2027. This
final rule also replaces total sugar limits for breakfast cereals and
yogurt with added sugars limits in CACFP regulations found at 7 CFR
226.20(a)(4)(ii), (a)(5)(iii)(B), (b)(5), and (c). The CACFP amendments
must be implemented by October 1, 2025.

Section 3: Milk

This section includes the following sub-sections:
<bullet> Section 3A discusses requirements for flavored milk in the
NSLP, SMP, SBP, and CACFP, and for milk sold [agrave] la carte (i.e.,
as a Smart Snack in School).
<bullet> Section 3B provides an overview of comments that USDA
received in response to the proposed rule's request for input on fluid
milk substitutes in the child nutrition programs.
<bullet> Section 3C discusses the nutrient requirements for fluid
milk substitutes.

Section 3A: Flavored Milk

Current Requirement

The National School Lunch Act (42 U.S.C. 1758(a)(2)(i)) requires
schools to offer students a variety of fluid milk at lunch; such milk
must be consistent with the most recent Dietary Guidelines. The Child
Nutrition Act (42 U.S.C. 1773(e)(1)(A)) requires school breakfasts to
meet the same terms and conditions set forth for school lunches in the
National School Lunch Act (42 U.S.C. 1758), including the requirements
for fluid milk. Current regulations at 7 CFR 210.10(d)(1)(i), 220.8(d),
and 210.11(m) allow schools to offer fat-free and low-fat (1 percent
fat) milk, flavored and unflavored, in reimbursable school lunches and
breakfasts, and for sale [agrave] la carte. The current regulations
also require that unflavored milk be offered at each school meal
service. Fat-free and low-fat milk, flavored and unflavored, may also
be offered to participants ages 6 and older in the SMP and CACFP (7 CFR
215.7a(a) and 226.20(a)(1)(iii)). Lactose-free and reduced-lactose milk
meet the meal pattern requirements for fluid milk (7 CFR
210.10(d)(1)(i), 215.7a(a), 220.8(d), and 226.20(a)(1)). The current
milk requirements took effect on July 1, 2022.

Proposed Rule

USDA proposed the following two alternatives for milk requirements
in the school lunch and breakfast programs and invited public comment
on both:
<bullet> Alternative A: Allow flavored milk (fat-free and low-fat)
at school lunch and breakfast for high school children only, effective
SY 2025-2026. Under this alternative, USDA proposed that children in
grades K-8 would be limited to a variety of unflavored milk. USDA also
requested public input on whether to allow flavored milk for children
in grades 6-8 as well as high school children (grades 9-12). Children
in grades K-5 would again be limited to a variety of unflavored milk.
Under both Alternative A scenarios, flavored milk would be subject to
the new proposed added sugars limit (10 grams of added sugars per 8
fluid ounces).
<bullet> Alternative B: Continue to allow all K-12 schools to offer
fat-free and low-fat milk, flavored and unflavored, with the new
proposed added sugars limit for flavored milk (10 grams of added sugars
per 8 fluid ounces).
USDA also proposed a minor technical change to the regulatory text
for milk sold [agrave] la carte. Instead of repeating the allowable
milk types in 7 CFR 210.11(m), which describes the beverages that
schools can sell [agrave] la carte, USDA proposed to cross-reference 7
CFR 210.10(d). This change was intended to clarify that the NSLP milk
requirements apply to milk sold [agrave] la carte.

Public Comments

USDA received over 1,600 comments on flavored milk, including
almost 600 unique comments. Of these, over 1,500 supported flavored
milk, including about 375 unique comments. About 70 opposed flavored
milk, including about 50 unique comments. Additionally, specific
comment counts regarding Alternative A and Alternative B proposals are
described in more detail below. A wide range of stakeholders, including
State agencies, school nutrition professionals, advocacy groups,
industry respondents, professional associations, dietitians, parents,
and students commented on the proposed milk alternatives. At a high

[[Page 31982]]

level, respondents provided the following feedback on flavored milk:
<bullet> Flavored milk is the leading source of added sugars in
school meals.
<bullet> Offering flavored milk, which is a more palatable option
for some children, improves children's milk consumption and reduces
milk waste.
<bullet> Milk is an important source of calcium, protein, and other
micronutrients.
<bullet> USDA should consider operational constraints, such as a
lack of storage space for flavored milk, when determining which milk
alternative to finalize.
More detailed respondent feedback, including respondent input on
the two alternatives, is discussed below.
Alternative A: Allow Flavored Milk for Older Students Only
Fifty-five respondents, including 36 unique comments, representing
school nutrition professionals, parents, and advocacy groups, supported
Alternative A. A school nutrition professional suggested that
Alternative A would help transition students away from flavored milk
and reduce their consumption of added sugars. This respondent suggested
that after students who are currently in grades K-5 transition to
middle and high school, USDA could apply the limit to older children,
too. A parent agreed, asserting that water and unflavored milk are the
only beverages that young children should consume. A school nutrition
professional stated that, although flavored milk is the most popular
choice, the amount of added sugars in flavored milk is ``unnecessary
for our student's diets.'' This respondent argued that students are
already exposed to too much added sugars outside of school meals.
Another Alternative A proponent stated that flavored milk should be a
treat for younger students, not an everyday choice. An advocacy group
noted that flavored milk is a top contributor to added sugars intake
and that younger children overconsume added sugars at a higher rate
than older children.
Some respondents opposed flavored milk in school meals entirely.
Several advocacy groups recommended that USDA limit flavored milk
options for all grade levels. Many respondents urged USDA to limit
flavored milk to the greatest extent possible, citing that nutrients
found in milk are also found in other foods that are lower in added
sugars. An individual argued that flavored milk should not be served in
school meals because the added sugars ``cancels out any potential
benefits of consuming milk.'' A school district opposed flavored milk
and mentioned that flavored milk is not offered at any of their
schools. An advocacy group urged USDA to prohibit flavored milk in
school meals due to the harmful public health impacts of added sugars
consumption.
A few respondents addressed concerns about Alternative A's
potential impact on children's milk consumption. An advocacy group
cited research that found a ``modest decrease'' in student milk
consumption when flavored milk was removed from schools but noted that
the same study found ``no significant reductions in average per-student
intake of calcium, protein, or vitamin D from milk.'' The respondent
added that the same study found a decline in added sugars intake from
removing flavored milk. However, this advocacy group recommended that
USDA periodically monitor milk consumption and intake of milk-related
nutrients if Alternative A is implemented.
In addition to general feedback, USDA requested public input on the
following questions related to Alternative A:
<bullet> Do respondents that support Alternative A have specific
input on whether USDA should limit flavored milk to high schools only
(grades 9-12) or to middle schools and high schools only (grades 6-12)?
<bullet> If Alternative A is finalized with restrictions on
flavored milk for grades K-8 or K-5 in NSLP and SBP, should USDA also
pursue a similar change in SMP and CACFP?
<bullet> Are there any special considerations USDA should keep in
mind for SMP and CACFP operators, given the differences in these
programs compared to school meal program operators?
In response to the first question, one industry respondent
supported limiting grades K-8 to unflavored milks only, if this change
is accompanied by a reduction in minimum required calories or an
increase in program funding. This respondent explained that when
omitting flavored milk, menus are significantly higher in cost due to
adding calories from other food groups to meet the required minimum
calories. A school district and a dietitian each supported removing
flavored milk from the school meal programs entirely but stated that if
USDA maintains flavored milk for some students, it should be limited to
grades 9-12 only. A few advocacy groups also supported limiting
elementary and middle schools to offering unflavored milk only. A few
other advocacy groups supported allowing flavored milk for grades 6-12
and limiting grades K-5 to unflavored milk only; one suggested that
this approach would give middle schools students, who are old enough to
make healthy food choices, the option to choose flavored or unflavored
milk.
Regarding the second question, over 100 respondents, including 34
unique comments, addressed whether USDA should pursue a similar change
in SMP and CACFP, if Alternative A is finalized for school meals. One
CACFP sponsoring organization did not support further restricting
flavored milk options in CACFP. A few advocacy groups representing
CACFP sponsoring organizations stated they ``categorically oppose''
Alternative A and that ``USDA should not pursue a similar change in
CACFP.'' Another advocacy group opposed limiting flavored milk to older
children only in the CACFP, asserting that ``acceptance of milk would
decrease'' if flavored milk is not permitted. A State agency also
opposed limiting flavored milk to older children only in the CACFP,
noting that some children participating in the afterschool component of
CACFP engage in physical activities, where flavored milk could be a
suitable recovery beverage. A CACFP sponsoring organization agreed,
suggesting that children who participate in their afterschool care
program prefer flavored milk.
However, a State agency supported implementing similar changes in
SMP and CACFP to support consistency in program requirements, if
Alternative A is finalized for school meals. An individual also
supported similar changes in SMP and CACFP, arguing that this would
help reduce added sugars intake and help establish healthy eating
patterns for young children. This respondent stated that special
considerations for these programs are ``unnecessary.'' A school
district also supported similar changes in SMP and CACFP ``for
consistent messaging and implementation.''
Alternative B: Continue To Allow Flavored Milk for All K-12 Students
About 800 respondents, including 180 unique comments, including
State agencies, school nutrition professionals, industry respondents,
and individuals, supported Alternative B. Many cited children's
preference for flavored milk as a key reason for supporting Alternative
B. For example, a school district shared that they serve 90 percent
flavored milk and 10 percent unflavored milk, and a dietitian asserted
that 95 percent of the children at their school drink flavored milk and
the children ``won't drink milk anymore'' if they only offer unflavored
milk. A school food service professional supported Alternative B
because a

[[Page 31983]]

majority of the milk they purchase (97 percent) is flavored milk and
they would ``rather students take some form of milk than none at all.''
Numerous other respondents agreed, claiming that flavored milk is
associated with higher milk consumption and student participation. One
respondent emphasized the importance of allowing choice and teaching
students how to consume all foods and beverages in moderation.
A national organization representing tens of thousands of school
nutrition professionals supported Alternative B, acknowledging that
``milk processers have significantly reduced added sugar[s]'' in
flavored milk served in schools. A school nutrition professional, a
parent, and other respondents also recognized the importance of
reducing added sugars, but maintained that student participation should
be a priority; thus, these respondents supported Alternative B.
Respondents also noted that flavored milk is an important source of
nutrients such as calcium and protein. A dietitian asserted that a
small amount of added sugars in milk helps students receive the
nutritional benefits of milk. One respondent claimed that children not
drinking milk is more ``detrimental to [student] health than added
sugars in flavored milk,'' and therefore supported continuing to allow
flavored milk for all K-12 students. Another respondent supported
lowering added sugars in flavored milks, but not restricting flavored
milks. Respondents also stated that restricting flavored milk may cause
students to consume other beverages, including sugary beverages like
soda and energy drinks.
Several respondents that supported Alternative B raised operational
concerns regarding Alternative A. A State agency suggested that many
rural schools have one building and may only have one milk cooler for
grades K-12. The State agency also noted that many schools serve meals
to students across grades in the same meal service (for example, grades
5-7 or grades 7-9) and it would be difficult for students to understand
if one grade can have flavored milk and others cannot. Similarly,
another State agency mentioned that some of their schools have grades
6-12 in one building, and ``changing out the milk adds one more task to
a busy lunch period.'' This respondent added that some schools do not
have extra refrigeration space to remove flavored milk from their milk
cooler during the meal service. A third State agency also noted that
schools in their State have many unique grade configurations, including
grades K-6, K-12, and 7-12. This State agency noted that it would be
``very burdensome'' for schools to move milk in and out of coolers
between meal services for different grades, and that the challenges of
implementing Alternative A would be even more difficult when different
grades are served during the same meal periods.
An individual noted that implementing Alternative A could be
difficult for school employees, who would be responsible for explaining
the change to families. A dietitian agreed, suggesting that Alternative
A would send a ``confusing message.'' A State agency cited concerns
about supply chain issues and prices, arguing that schools already have
limited choices, and further restrictions would negatively impact price
and availability. A school district raised purchasing concerns, noting
that purchasing for a large district is ``complicated'' and that
Alternative A could create more confusion for vendors. A State agency
suggested Alternative A would increase monitoring requirements. A
different State agency raised similar concerns, especially when
multiple grades share meal services. For example, this State agency
noted that differing milk requirements by grade level could create
challenges during an Administrative Review, as a reviewer would have to
inquire about a student's grade level when they are passing through the
lunch line, to ensure the student received a compliant milk.
Other Comments on Flavored Milk
Some respondents offered their own alternatives or suggested
changes to the milk requirements. For example, instead of finalizing
Alternative A, several respondents suggested limiting flavored milk to
lunch only and requiring unflavored milk at breakfast. One respondent
supported Alternative A, but for a different approach, suggested
allowing flavored milk only once per week for grades 9-12. A few
respondents, including an advocacy group and school districts,
recommended that USDA allow schools to choose which alternative to
implement.
Other respondents encouraged USDA to expand milk options beyond
fat-free and low-fat milk. For example, one school district suggested
USDA allow reduced-fat (2 percent), unflavored milk, arguing that this
option is more palatable for students. One respondent suggested
allowing whole milk in school meals, while another agreed and
specifically suggested allowing whole, flavored milk. A State elected
official encouraged USDA to allow reduced-fat and whole milk options,
asserting that this would increase milk consumption and reduce milk
waste. An industry respondent agreed, stating that they are confident
that the next edition of the Dietary Guidelines will ``look more
favorably on dairy at all fat levels.'' This respondent urged USDA to
allow reduced-fat and whole milk in school meals in anticipation of
what the industry respondent expects in the next Dietary Guidelines. A
dietitian suggested USDA consider ``increasing the allowable fat and
calories'' in milk options.
A State agency urged USDA to reconsider the requirement to provide
a variety of fluid milks (i.e., at least two options) with each meal
service. This respondent argued that the variety requirement leads to a
lot of waste. A school food service professional agreed, suggesting
that providing variety contributes to waste. This respondent stated
that ``skim [milk] is almost never chosen and ends up wasted.'' A
professional organization cautioned that limiting flavored milk options
could potentially effect meal participation and financial viability for
schools. A school district respondent requested that USDA increase
funding for Farm to School and equipment grant projects to support more
locally produced milk and bulk milk dispensers.

Final Rule

This final rule codifies the proposal to maintain the current milk
regulations, with minor technical changes, at 7 CFR 210.10(d),
220.8(d), and 210.11(l).\52\ Under this final rule, all schools
continue to have the option to offer fat-free and low-fat milk,
flavored and unflavored, to K-12 students, and to sell fat-free and
low-fat milk, flavored and unflavored, [agrave] la carte. Consistent
with current requirements, unflavored milk must be offered at each
school breakfast and lunch meal service. SMP and CACFP operators may
continue to offer fat-free and low-fat milk, flavored and unflavored,
to participants ages 6 and older. Additionally, as a reminder, lactose-
free and reduced-lactose milk will continue to meet the meal pattern
requirements for fluid milk under this final rule (7 CFR
210.10(d)(1)(i), 215.7a(a), 220.8(d), and 226.20(a)(1)).
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\52\ This final rule redesignates the paragraph outlining
requirements for competitive beverages, which was previously 7 CFR
210.11(m) to instead be 7 CFR 210.11(l). Under this final rule, the
requirements for milk sold as a competitive beverage are outlined at
7 CFR 210.11(l).
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Under requirements established in this final rule for added sugars,
as discussed in Section 2: Added Sugars, flavored milk offered to K-12
students

[[Page 31984]]

in the NSLP and SBP and sold to students [agrave] la carte during the
school day must comply with the product-based added sugars limit. Under
this product-based limit requirement, effective SY 2025-2026, flavored
milk must contain no more than 10 grams of added sugars per 8 fluid
ounces, or for flavored milk sold [agrave] la carte in middle and high
schools, 15 grams of added sugars per 12 fluid ounces.
USDA is committed to ensuring that school meals provide children
with nutrient-dense foods and beverages that are consistent with the
goals of the most recent Dietary Guidelines. USDA recognizes that dairy
products, including fluid milk, provide a variety of essential
nutrients--some of which are underconsumed among school-aged children.
The decision to allow flavored, low-fat milk acknowledges concerns
expressed in public comments about declining milk consumption among
school-aged children. It also acknowledges the nutrients that milk
provides (e.g., calcium, vitamin D, and potassium), which remain
nutrients of public health concern for the general U.S. population
because they are underconsumed.\53\ Respondents expressed the
importance of considering milk palatability and acceptability when
establishing long-term requirements.
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\53\ U.S. Department of Agriculture and U.S. Department of
Health and Human Services. Dietary Guidelines for Americans, 2020-
2025. 9th Edition. December 2020. Page 36. Available at:
<a href="http://DietaryGuidelines.gov">DietaryGuidelines.gov</a>.
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Many stakeholders raised concerns about the potential impact on
milk consumption if flavored milk options were limited under
Alternative A. USDA recognizes that both flavored and unflavored milk
provide children with key nutrients. Flavored milk has been shown to
encourage milk consumption among school-aged children,\54\ and public
comments from school nutrition professionals suggest that children may
select and consume flavored milk more often than unflavored milk. For
example, USDA research from SY 2014-2015 found that about 18 percent of
low-fat, flavored milk offered with school lunch was wasted, compared
to 35 percent of low-fat, unflavored milk.\55\ USDA acknowledges the
benefit of allowing flavored milk to be offered as a strategy to
promote milk consumption, a beverage that provides several nutrients
that are underconsumed during childhood and adolescence. Additionally,
many respondents stated that flavored milk is purchased in higher
quantities compared to unflavored milk, affirming that flavored milk is
a popular choice among students. Offering both flavored and unflavored
varieties of milk as part of a nutritious school meal may help to
minimize the gap between current and recommended intakes of key
nutrients among school-aged children and adolescents. For example, a
USDA study found that K-12 students who participated in NSLP were
significantly more likely to consume milk compared to students who did
not participate.\56\ Thus, the school meal programs remain a
contributing factor in influencing milk consumption among children.
USDA acknowledges the importance of allowing schools the option to
offer milk varieties that children will consume and enjoy.
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\54\ See page 58. Institute of Medicine, Nutrition Standards for
Foods in Schools: Leading the Way Toward Healthier Youth (``IOM
Report''). Available at: <a href="https://nap.nationalacademies.org/catalog/11899/nutrition-standards-for-foods-in-schools-leading-the-way-toward">https://nap.nationalacademies.org/catalog/11899/nutrition-standards-for-foods-in-schools-leading-the-way-toward</a>. See also: Mary M. Murphy et al., Drinking Flavored or Plain
Milk is Positively Associated with Nutrient Intake and Is Not
Associated with Adverse Effects on Weight Status in U.S. Children
and Adolescents.
\55\ See Table 5.1: Mean Percentage of Observed Trays including
Specific Foods and Mean Percentage of Observed Foods Wasted in NSLP
Lunches. U.S. Department of Agriculture, Food and Nutrition Service,
Office of Policy Support, School Nutrition and Meal Cost Study,
Final Report Volume 4: Student Participation, Satisfaction, Plate
Waste, and Dietary Intakes, by Mary Kay Fox, Elizabeth Gearan,
Charlotte Cabili, Dallas Dotter, Katherine Niland, Liana Washburn,
Nora Paxton, Lauren Olsho, Lindsay LeClair, and Vinh Tran. Project
Officer: John Endahl. Alexandria, VA: April 2019. Available at:
<a href="https://www.fns.usda.gov/school-nutrition-and-meal-cost-study">https://www.fns.usda.gov/school-nutrition-and-meal-cost-study</a>.
\56\ U.S. Department of Agriculture, Food and Nutrition Service,
Office of Policy Support, School Nutrition and Meal Cost Study
Volume 4: Student Participation, Satisfaction, Plate Waste, and
Dietary Intakes Appendix I-P. Available at: <a href="https://www.fns.usda.gov/school-nutrition-and-meal-cost-study">https://www.fns.usda.gov/school-nutrition-and-meal-cost-study</a>.
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USDA recognizes that some stakeholders supported limiting flavored
milk options under Alternative A. USDA appreciates public input on
Alternative A, which would have limited flavored milk offerings to
older students, in grades 9-12 or grades 6-12. Several respondents
acknowledged that Alternative A would help reduce the intake of
beverages with added sugars, especially for younger children. Advocacy
groups and parents also supported this alternative as a way to
transition students from flavored to unflavored milk and reduce their
consumption of added sugars. Conversely, other respondents raised
important concerns about the operational feasibility if Alternative A
were finalized. For example, one school district explained that some
schools serve multiple grades in a single meal service, and students
from grades K-12 may be in the cafeteria at the same time. These
schools may not have the opportunity or capacity to limit milk options
as children from different grade levels pass through the serving lines,
and would have to monitor student milk selections by grade level to
ensure compliance with Alternative A. A few State agencies added that
limiting flavored milk options by grade levels could be challenging to
monitor during Administrative Reviews. USDA acknowledges respondent
concerns that Alternative A could be difficult to implement and
monitor, especially for small schools or schools where students from
different grade levels share the same meal service. Due to the
variability in school size, grade level configurations, storage and
cafeteria space, and overall operations, USDA recognizes that
Alternative A could cause unintended operational and administrative
challenges for both schools and State agencies. USDA appreciates the
important concerns raised by stakeholders, particularly on behalf of
small schools, and considered this input in the final rule.
USDA recognizes that under this final rule, flavored milk will
continue to contribute to added sugars in school meals. However, as
noted in Section 2: Added Sugars, this rulemaking also finalizes a
product-based added sugars limit for flavored milk. By SY 2025-2026,
schools must implement a product-based limit for flavored milk of no
more than 10 grams of added sugars per 8 fluid ounces or, for flavored
milk sold as a competitive food for middle and high schools, 15 grams
of added sugars per 12 fluid ounces. In SY 2027-2028, this rule will
also implement an overall weekly limit for added sugars of less than 10
percent of calories per week. USDA expects that these actions, as well
as the other product-based added sugars limits finalized in this
rulemaking, will support an overall decrease in the added sugars
content of school meals. Additionally, as noted above, this final rule
maintains that NSLP and SBP operators who choose to offer flavored milk
must also offer unflavored milk (fat-free or low-fat) to students in
the same meal service. This requirement ensures that milk variety in
the NSLP and SBP is not limited to flavored milk choices, and that a
nutrient-dense form of milk that is lower in added sugars (i.e.,
unflavored milk) is always available for students to select. USDA is
committed to advancing the nutritional quality of school meals and
reducing added sugars to safeguard children's health and align with the
goals of the most recent Dietary Guidelines.
USDA appreciates respondent feedback on additional approaches to

[[Page 31985]]

reduce added sugars intake from flavored milk. For example, respondents
suggested that schools can limit flavored milk options to lunch only,
procure flavored milks with the least amount of added sugars, or limit
flavored milk to one day per school week. Additionally, there is no
requirement that schools offer flavored milk, and schools may choose to
remove all flavored milk from school meal menus as long as the school
continues to offer a variety of fluid milk. For example, one school
district commented that they have removed flavored milk from their
menus to support school wellness. USDA encourages schools to consider
these strategies to further reduce added sugars in school meals and to
choose options that work best for their unique communities.
Respondents also raised other ideas and suggestions related to milk
requirements. For example, some respondents encouraged USDA to remove
the milk variety requirement. The requirement to offer a variety of
milk options is mandated by statute, and USDA does not have the
authority to change this statutory requirement (42 U.S.C.
1758(a)(2)(i)). Schools have several options to meet the milk variety
requirement, such as offering unflavored fat-free and unflavored low-
fat milk. Schools may also offer lactose-free or reduced-lactose milk
(fat-free or low-fat) to meet the milk variety requirement. Other
respondents recommended USDA allow schools to offer milk with a higher
fat content. While USDA appreciates comments suggesting schools be
allowed to offer reduced fat and whole milk, allowing these milk
options in the school meal programs would not be consistent with the
goals of the most recent Dietary Guidelines as required by the NSLA and
would make it difficult for menu planners to achieve weekly dietary
specifications without exceeding calorie and saturated fat limits.
Statutory requirements state that milk offered in reimbursable school
meals must be consistent with the most recent Dietary Guidelines, and
the Dietary Guidelines, 2020-2025 recommends unsweetened, fat-free or
low-fat milk for school-aged children. Therefore, USDA does not permit
reduced-fat or whole milk in the school meal programs (7 CFR
210.10(d)(1)(i) and 220.8(d)).
As mentioned above, this final rule does not change any milk
requirements in CACFP. Many respondents requested that milk standards
established in school meal programs be consistent with the CACFP. USDA
recognizes that regulatory consistency across programs, a long-time
goal at USDA, facilitates program administration and operation at the
State and local levels, fosters support, and meets stakeholder
expectations.
Accordingly, this final rule makes minor technical changes to the
requirements found in 7 CFR 210.10(d)(1), 210.11(l)(1)(ii), (l)(2)(ii),
and (l)(3)(ii),\57\ and 220.8(d). This final rule continues to allow
NSLP and SBP operators to offer unflavored or flavored, fat-free or
low-fat milk as part of a reimbursable meal and for sale [agrave] la
carte, and to allow flavored, low-fat milk in the SMP and in the CACFP
for participants ages 6 and older. Because this rule finalizes the
current flavored milk requirements, child nutrition program operators
will not need to make changes to their menus to comply with this
provision, beyond those changes described in Section 2: Added Sugars.
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\57\ This final rule redesignates the paragraph outlining
requirements for competitive beverages, which was previously 7 CFR
210.11(m) to instead be 7 CFR 210.11(l). Under this final rule, the
requirements for milk sold as a competitive beverage are outlined at
7 CFR 210.11(l).
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Section 3B: Fluid Milk Substitutes: Responses To Request for Input

Current Requirement

As noted in Section 3A: Flavored Milk, the National School Lunch
Act requires fluid milk (cow's milk) to be offered with every school
breakfast and lunch. The statute is also very specific about allowable
fluid milk substitutes for non-disability reasons. To provide a
substitute for cow's milk in the school meal programs, the statute
requires:
<bullet> That the fluid milk substitute is nutritionally equivalent
to fluid milk and meets nutritional standards established by the
Secretary, which must include fortification of calcium, protein,
vitamin A, and vitamin D to levels found in cow's milk (42 U.S.C.
1758(a)(2)(B)(i)). This requirement also applies to the CACFP (42
U.S.C. 1766(g)(4)(B)).
<bullet> That the substitution is requested in writing by a medical
authority or the child's parent or legal guardian (42 U.S.C.
1758(a)(2)(B)(ii)). This requirement also applies to CACFP (42 U.S.C.
1766(g)(4)(C)(i)(II)).
<bullet> That the school notify the State agency if it is providing
fluid milk substitutes for non-disability reasons (42 U.S.C.
1758(a)(2)(B)(ii)).
<bullet> That the school cover any expenses related to providing
fluid milk substitutes in excess of program reimbursements (42 U.S.C.
1758(a)(2)(B)(iii)). This requirement also applies to institutions or
facilities in the CACFP (42 U.S.C. 1766(g)(4)(D)).
Under current school meal regulations, the statutory requirements
for fluid milk substitutes for non-disability reasons are codified in
two places:
<bullet> Current 7 CFR 210.10(d)(3) details the nutrition
requirements for fluid milk substitutes for non-disability reasons.
<bullet> Current 7 CFR 210.10(m)(2)(i) through (iii) detail
additional requirements for fluid milk substitutes for non-disability
reasons, such as the process for requesting a fluid milk substitute on
behalf of a student.
Under current CACFP regulations, the statutory requirements for
fluid milk substitutes are codified at 7 CFR 226.20(g)(3).
As a point of clarification, the statute and program regulations
require schools, institutions, and facilities to provide meal
modifications for participants with a disability that restricts their
diet. Lactose intolerance may be considered a disability. For example,
a child whose digestion is impaired due to lactose intolerance may be
considered a person with a disability who requires a substitution for
cow's milk. In this example, if a student cannot consume cow's milk due
to a disability, and the school food authority obtains a written
medical statement as documentation of the student's disability, the
school is required to provide a substitution for cow's milk. Further,
when providing a meal modification for a participant's disability, the
substitution for cow's milk does not need to meet the non-disability
fluid milk substitute requirements. When providing a meal modification
for a participant's disability, the school, institution, or facility
would review the participant's medical statement which must include a
recommended alternative to accommodate the participant with a
disability,\58\ and the substitution would not be required to meet the
nutrition requirements for non-disability fluid milk substitutes. The
nutrition requirements for non-disability fluid milk substitutes apply
only in non-disability situations. This section will focus on non-
disability fluid milk substitute requirements. Please see Section 14:
Meal Modifications for a more detailed overview of meal modifications
for disability reasons,

[[Page 31986]]

including updates made by this rulemaking.
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\58\ However, Program operators should not deny or delay a
requested modification because the medical statement does not
provide recommended alternatives. When necessary, Program operators
should work with the participant's parent or guardian to obtain a
supplemental medical statement. See Question 17. U.S. Department of
Agriculture, Accommodating Disabilities in the School Meal Programs:
Guidance and Questions and Answers (Q&As). April 25, 2017. Available
at: <a href="https://www.fns.usda.gov/cn/accommodating-disabilities-school-meal-programs-guidance-qas">https://www.fns.usda.gov/cn/accommodating-disabilities-school-meal-programs-guidance-qas</a>.
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Proposed Rule

USDA proposed to reorganize the NSLP regulatory text related to
fluid milk substitutes for non-disability reasons to clarify the
requirements for requesting and providing non-disability fluid milk
substitutes in the school meal programs. The rule proposed to move the
NSLP regulatory text explaining the non-disability fluid milk
substitute requirements from paragraph (m) of 7 CFR 210.10--which
currently discusses exceptions and variations allowed in reimbursable
meals--to paragraph (d) of 7 CFR 210.10--which discusses the fluid milk
requirements.
USDA did not propose substantive changes to the requirements for
non-disability fluid milk substitutes. As noted in the proposed rule,
USDA does not have the authority to change the statutory requirements
for non-disability fluid milk substitutes. However, USDA requested
public input on the current fluid milk substitute process, particularly
from parents and guardians with firsthand experience requesting a non-
disability fluid milk substitute on behalf of their child, and program
operators with firsthand experience processing a request.

Public Comments

USDA received 390 comments with feedback about the current fluid
milk substitute process, including 194 unique comments. Several
respondents encouraged USDA to make the process of requesting and
providing fluid milk substitutes less cumbersome so that participants
can more easily access substitutes. These respondents offered a variety
of suggestions for USDA, State agencies, schools, institutions, and
facilities to consider to improve access to fluid milk substitutes. For
example, respondents suggested:
<bullet> Pursuing a public education campaign to encourage medical
screening of children with possible lactose intolerance and milk
allergies.
<bullet> Developing informational fliers with basic facts about
lactose intolerance and milk allergies to be posted in school
cafeterias and community clinics and sent home with children.
<bullet> Improving awareness of the process of requesting fluid
milk substitutes among school food service professionals, parents,
guardians, and students, for example, by:
<bullet> Clarifying that schools are authorized and encouraged to
provide fluid milk substitutes for non-disability reasons based on a
parent or guardian request.
<bullet> Issuing guidance with examples of reasons students may
request a non-disability fluid milk substitute, such as following a
vegan diet.
<bullet> Simplifying the process of requesting a fluid milk
substitute for a participant, for example, by:
<bullet> Including in registration materials a simple way for
parents and guardians to request a fluid milk substitute, such as a
form with a checkbox.
<bullet> Providing a model notice and form parents and guardians
may use to request a fluid milk substitute that schools, institutions,
or facilities can post on their website and mail to families.
<bullet> Providing a list or database of allowable fluid milk
substitutes, such as fortified soy beverages or pea protein milk.
<bullet> Identifying more shelf-stable fluid milk substitute
options, especially for small schools, institutions, and facilities

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