States, groups sue USDA for weakening school nutrition requirements

The U.S. Department of Agriculture’s reduction of sodium limitations and whole-grain requirements in public school meals has been challenged recently in two separate lawsuits.

The first pits USDA versus a coalition of six states—New York, California, Illinois, Minnesota, New Mexico and Vermont—as well as Washington, D.C., in the U.S. District Court for the Southern District of New York. The second involves the Center for Science in the Public Interest and Healthy School Food Maryland suing USDA in the District of Maryland.

In the multistate complaint, the coalition argues USDA’s decision failed to rely on any analysis of the relevant science and ignored existing federal dietary guidelines. In addition, USDA violated notification requirements mandated under the federal Administrative Procedure Act.

To align school meals with science-based nutrition standards and improve the health of school-age children, in 2012, USDA issued a rule requiring schools participating in the National School Lunch and Breakfast Programs to phase in three sodium-reduction targets and require that all grain-based foods be whole-grain-rich, which means that at least half of the grains must be whole.

The rule, issued at the direction of Congress in the Healthy Hunger-Free Kids Act of 2010, also increased the amount of fruits and vegetables on kids’ lunch trays and set limits on saturated and trans fats—changes required to meet basic nutrition standards in the Dietary Guidelines for Americans with which the programs are required by statute to comply.

In December 2018, the Trump administration published a new rule delaying the compliance date for the second sodium-reduction target and eliminating the third target altogether. That rule also slashed the whole-grain-rich standard, requiring that only half of the grain-based foods served in school meals be whole-grain-rich. The 2018 final rule followed a proclamation by Secretary of Agriculture Sonny Perdue, signed within his first week in office, to, as Perdue said, “make school meals great again.”

Several of the attorneys general offered statement, such as following two.

“Once again, the Trump Administration has shown its disregard for good governance and the facts,” said California’s Democratic Attorney General Xavier Becerra. “That’s why we’re stepping in to protect the long-term health and well-being of our students and children throughout the country. A healthy diet is important for all Americans, but it is especially important for the development of our youth.”

“Over a million children in New York—especially those in low-income communities and communities of color—depend on the meals served daily by their schools to be healthy, nutritious, and prepare them for learning,” said New York’s Democratic Attorney General Letitia James.

“The Trump Administration has undermined key health benefits for our children—standards for salt and whole grains in school meals—with deliberate disregard for science, expert opinion, and the law. My office will use every tool at our disposal to fight back against these shameful rollbacks and ensure our children are protected.”

The CSPI complaint alleges USDA violated the Administrative Procedure Act and the National School Lunch Act by issuing a final rule that substantially weakens nutrition standards concerning the amount of whole grains and sodium served in school meals. According to a CSPI release, the weakened standards put approximately 30 million children, including approximately 22 million low-income children, at greater risk of health issues associated with diets high in sodium and low in whole grains.

“American children are fed too much sodium—raising their risk of high blood pressure, heart disease, and stroke,” Margo Wootan, CSPI’s vice president for nutrition, said. “Kids are also getting too much white refined flour and not enough whole grains.

“After working for over a decade to improve school nutrition and seeing the tremendous progress that schools are making, it’s heartbreaking to see the Trump administration reverse course. The Trump rollbacks are recklessly putting kids’ health in jeopardy.”

“The effects of the rollbacks will reverberate throughout all levels of policymaking, down to the local schools in our area,” Fania Yangarber, executive director of Healthy School Food Maryland, said. “Our organization has been equipping parents with tools based on nutrition and wellness standards that were undergirded by the solid foundation of the hard-won victories of the Healthy, Hunger-Free Kids Act; the rollbacks amount to a fracturing of that foundation, which all our work is based on, and will hurt our kids.”

USDA also violated the Administrative Procedure Act, the CSPI lawsuit said, by failing to provide a reasoned explanation for rolling back the standards and for taking actions about which it had not sought feedback. Nor did USDA adequately respond to more than 85,000 public comments, a vast majority of which favored keeping the original 2012 standards for sodium (96 percent) and whole grains (97 percent).

Yet USDA’s own data shows that virtually all schools (99 percent) participating in the National School Lunch Program are making progress toward serving healthier meals and are meeting the sodium and whole grain requirements.

“The law requires USDA to make sure school kids are served healthy meals by basing nutrition standards on science, so ignoring science and putting kids’ health at risk like this is not just wrong, it’s illegal,” Democracy Forward Executive Director Anne Harkavy said.

The non-profit School Nutrition Association meanwhile responded by saying in a release it supports the December 2018 final rule on school meal flexibilities, which aligns with the Institute of Medicine’s scientific recommendations for updating school meal nutrition standards.

Representing 58,000 school nutrition professionals who prepare meals for 30 million students daily, SNA issued a statement commending USDA’s final rule protecting limits on calories and unhealthy fat, which ensure school meals do not contribute to obesity. SNA also supports mandates to offer students larger servings and a wider variety of fruits and vegetables and celebrates the tremendous progress schools have achieved in improving the nutrition and quality of school meals.

Similarly, citing student acceptability, product availability and cost, the IOM recommended a whole grain requirement in line with the 2018 final rule.

“SNA appreciates USDA’s efforts to preserve strong standards to benefit students while addressing long-standing challenges to ensure they choose and consume healthy school meals,” SNA President Gay Anderson, SNS, said.

Meanwhile, in an exit interview with Politco, Food and Drug Administration head Scott Gottlieb said guidance on voluntary short-term sodium reduction targets “is now in final clearance inside FDA.” Expect them to be released in the next month to six weeks, he said.

“I don’t think people should be at all surprised about where the FDA landed on this,” he said. “If the packaged food industry wants to start a lobbying campaign against voluntary guidelines, I think they risk ending up with multiple regimes in different states and municipalities.”

Larry Dreiling can be reached at 785-628-1117 or [email protected].