Nutrition in Schools

By Jill S. Hueter, J.D. Candidate

On April 22, 2002, the Texas Education Agency issued a new policy regarding the sale of foods of minimal nutritional value (FMNV) in schools to be implemented for the start of the 2002-03 school year.  The policy is a response to a January 16, 2001 United States Department of Agriculture (USDA) memorandum, which clarified existing regulations on competitive foods. Competitive foods are foods sold outside of the school meal program. Prior to the USDA memorandum, many Texas schools had banned vending machines from the cafeteria but allowed them in other eating areas.

The new policy defines the terms food service area and meal period.  FMNV may not be available in any area in which reimbursable meals are either served and/or eaten, including areas outside the traditional cafeteria such as courtyards, hallways, and classrooms.  Meal periods include both the time of serving and the time allotted to students for eating their meals.  The idea behind the policy is to encourage students to eat healthier meals and to reduce childhood obesity.  Schools that fail to comply may lose their school lunch subsidies for all meals served on the day of the violation.

The USDA has established four categories of FMNV: soft drinks, water ices, chewing gum, and certain candies (e.g., hard candy, jellies and gums, marshmallow candies, licorice, and candy-coated popcorn).  These foods provide less than 5% of the recommended dietary allowance for key nutrients.  Most chocolate bars, potato chips, and ice cream still make the cut under regulations set forth by the USDA.  The policy does not address vending machines and does not require that schools remove vending machines.  It requires that during meal periods, vending machines stocked with FMNV must be unplugged or locked, restocked with items not prohibited or placed in areas where food is neither served nor eaten.
The federal law is implemented in Section 210.11 of the National School Lunch Program (NSLP) regulations and Section 220.12 of the School Breakfast Program (SBP) regulations.  At a minimum, these rules or regulations must prohibit the sale of FMNV in the food service areas during meal periods.  State agencies and local school food authorities are authorized to impose additional restrictions on the sale of competitive foods.


Texas was the nationís 14th most obese state in a United States Centers for Disease Control and Prevention (CDC) study published in the May 22, 2002 Journal of the American Medical Association.  A 1999-2000 pilot study in Austin found 9% of kindergarteners, 23% of first-graders, and 23% of second-graders were obese based on body mass index (BMI) measurements.  A 1999 evaluation of El Paso third-graders by the University of Texas at El Paso found that 35% of boys and 29% of girls were overweight, while 22% of boys and 15% of girls were clinically obese.

Nationally, about 13% of children aged 6-11 are overweight, almost double the percentage 20 years ago, and the percentage for overweight adolescents aged 12-19 has almost tripled, now at 14%, according to the CDC.  There are approximately ten million children nationwide who are overweight, which would mean about 800,000 children in Texas.

A CDC study published in the May 2002 journal Pediatrics found that costs related to childhood obesity have more than tripled in the past 20 years, reaching $127 million by 1999.  Children are being hospitalized for obesity-related illnesses including diabetes, sleep apnea, gallbladder disease and asthma.

The United States Department of Health and Human Services (HHS) Secretary, Tommy Thompson, released a report on June 20, 2002 stating the total cost of overweight and obesity for children and adults in 2000 to be estimated at $117 billion.  Obese individuals spend approximately 36% more than the general population on health services and 77% more on medications.

One of the most serious aspects of overweight and obesity in children is Type II diabetes.  A diabetes specialist at Texas Childrenís Hospital reported that the number of pediatric patients diagnosed with Type II diabetes rose from less than 5%, before 1995, to 31% last year.  Type II diabetes is a metabolic disorder resulting from the bodyís inability to either make enough insulin or properly use it.  It can result in several life-threatening complications, including blindness, kidney disease, nerve disease, lower-extremity amputations, heart disease and stroke.  According to the CDC, diabetes is the seventh leading cause of death in the United States.

Poor diet is one cause for the increase in childhood obesity.  A January 2001 report to Congress entitled Foods Sold in Competition with USDA School Meal Programs found that only 2% of school-aged children meet the Food Guide Pyramid serving recommendations for all five major food groups.  Children often replace school meals with less nutritious foods and beverages, causing an inadequate daily intake of key nutrients necessary for growth and learning.  When competitive foods are purchased in addition to school meals or in large quantities, there is the likelihood of over-consumption and weight gain.

One popular category of FMNV is soft drinks, which can be found in vending machines throughout many schools.  In a study published in the February 17, 2001 edition of the British medical journal the Lancet, Boston researchers discovered that each additional serving of soda per day increases the risk of obesity by about 60% in children.  The National Soft Drink Association (NSDA) refutes the claim pointing to research by the Georgetown University Center for Food and Nutrition Policy and Michigan State University that shows no relationship between soda consumption by children and obesity.  The NSDA says a ban on sodas is not necessary to combat childhood obesity, instead promoting increased physical activity and nutrition education.

For many schools, beverage marketing contracts and pouring rights with soft drink companies are a common source of additional income.  Many of these contracts have provisions that increase the percentage of profits schools receive when sales volume increases.  This is a substantial incentive for schools to promote soft drink consumption by adding vending machines, as well as increasing the times they are available.  Sixty-nine percent of secondary schools obtain additional funds through partnerships with food and beverage companies.  Houston Independent School District estimates it receives $2 million in revenue from vending machine sales annually.  Administrators say the loss of proceeds from vending machine sales could hurt student activity funds.

Other States

Nineteen states, three territories, and the District of Columbia have passed laws stricter than USDA regulations.  States with restrictive competitive food policies, like Louisiana, West Virginia, Georgia, and Mississippi, maintain rates of participation in school meal programs that are higher than the national average.

In some states (e.g., Colorado, Connecticut, Idaho, and Nebraska), competitive food sales are not allowed from one half-hour before until one half-hour after the breakfast/lunch period.  The District of Columbia, Kentucky, Maryland, and New York prohibit competitive foods on campus from the beginning of the school day until after the last lunch period.   In other states (e.g., Illinois, Louisiana, New Jersey, North Carolina, and Virginia), the income from competitive food sales must accrue to the school food service.  In the state of Maine, the sale of competitive foods is prohibited on campus at all times.

The West Virginia Board of Education prohibits the sale of chewing gum, candy bars, food or drinks containing 40% or more sugar or other sweeteners, juice or juice products containing less than 20% real fruit or vegetable juice, and foods with more than eight grams of fat per ounce serving. Soft drinks are prohibited at all times in elementary and middle schools and during breakfast and lunch periods in high schools.

In California, the sale of all foods outside the school meal program during the school day has been eliminated in elementary schools.  Competitive foods served in California secondary schools must meet strict fat, sugar, and portion size guidelines.  Beverages allowed on campuses include water, low-fat and nonfat milk, and drinks that contain at least 50% fruit juice with no added sweeteners.  Snacks and side dishes must have no more than 30% of calories from fat, no more than 10% of calories from saturated fat, and no more than 35% added sugar by weight to be allowed in schools.  Large or oversized portions for these snacks as well as entrée items are prohibited.

Federal Legislation

On July 30, 2002, U.S. Senators Bill Frist, Jeff Bingaman and Christopher Dodd introduced legislation aimed at reducing obesity among children.  The Improved Nutrition and Physical Activity Act or IMPACT focuses on health education and research to reduce the problem. The legislation proposes spending as much as over $200 million next year and additional money in future years on a variety of programs to encourage better nutrition, physical activity, and further research on obesity.