Texas Department of Agriculture Amends Nutrition Policy for Texas Schoolchildren

By Melanie R. Margolis

During the 78th Texas Legislative Session, Senate Bill 474 passed and was signed into law by Governor Rick Perry on June 20, 2003. In its original form, as filed on February 13, 2003, its caption read, “relating to nutrition and health programs for public school children.” In its substituted final form, reported from the Senate Education Committee on May 9, 2003, its caption read merely, “relating to an interim study on nutrition and health in public schools.” In S.B. 474’s Legislative Findings, the Legislature states that, “[c]hildhood obesity has reached epidemic levels in Texas. More than 28.6 percent of low-income children between the ages of 2 and 5 are obese. Approximately 38.7 percent of fourth-graders, 37.1 percent of eighth-graders, and 29.4 percent of eleventh-graders are overweight or obese.”

As filed, S.B. 474 sought to effect change to school food requirements. It sought to restrict the availability of “competitive foods.” “Competitive foods” are food and beverages other than those provided or made available by a school’s food services department. Such foods are often made available through vending machine sales and are often not the healthiest, most nutritious choices. Under S.B 474, as it was filed, any school that participates in the national school breakfast, lunch, or after-school snack program would have been subject to the following restrictions:

· elementary schools may not serve or provide access to competitive foods;

· middle schools may not serve or provide access to competitive foods until after the end of the school day;

· high schools may serve or provide access to competitive foods only after the end of the last meal service of the day;

· middle schools and high schools may not serve or provide access to competitive foods unless the foods meet certain applicable nutritional requirements set forth in S.B. 474 and in other state rules; and

· middle schools and high schools may provide access to competitive foods using vending machines only if the vending machines are rendered inoperative during the times at which access to such foods is prohibited.

Federal law imposes nutritional standards on foods served in districts where at least one school participates in the national school breakfast, lunch, or after-school snack program. In addition to the federal requirements, S.B. 474 would have required each school district to adopt policies pursuant to which certain foods and beverages would be prohibited, including the following: whole milk (except to children under two years of age); food items containing excessive amounts of fat per serving; and other items to be determined. Further, the policies would have had to encourage increasing weekly servings of fresh fruit, fresh vegetables, and whole grain foods.

Ultimately, S.B. 474 authorized a study on nutritional health in public schools. Where S.B. 474 failed the children of Texas, the Texas Department of Agriculture (TDA) stepped in with a policy change that was better than nothing at all. In a letter dated July 21, 2003, Texas Agriculture Commissioner Susan Combs announced that TDA had become the administering state agency for the Child Nutrition Programs in Texas public schools. See http://www.agr.state.tx.us/foodnutrition/combsletter.doc.  As such, TDA will oversee the National School Lunch (NSLP) and School Breakfast Programs (SBP). See http://www.agr.state.tx.us/foodnutrition/index.htm.

Federal regulations prohibit the sale of certain FMNV in the foodservice area during meal periods. A 2002 Child Nutrition Program policy memorandum had previously addressed prohibitions on serving FMNV in school food service and eating areas. See http://www.agr.state.tx.us/foodnutrition/whatsnew/childnutr042202.DOC. Citing concerns regarding obesity in children, the TDA issued a policy dated July 28, 2003 concerning foods of minimal nutritional value (FMNV) available in schools. See http://www.agr.state.tx.us/foodnutrition/whatsnew/FMNVPolicy.doc. The prohibited food items can generally be described as soda water, water ices, chewing gum, and certain candies. See http://www.agr.state.tx.us/foodnutrition/whatsnew/RestrictedFoods.doc.

Pursuant to the new policy:

· elementary schools may not serve or provide access for students to FMNV at any time anywhere on school premises during the school day;

· middle schools may not serve or provide access for students to FMNV anywhere on school premises during meal periods; and

· middle schools may not serve or provide access for students to prohibited carbonated beverages with volumes in excess of 12 ounces anywhere on school premises during the school day (except where existing contracts require vending of larger volume containers, but new contracts and renewals must expressly prohibit the sale of such beverages).

The policy is effective for the 2003-04 school year. See http://www.agr.state.tx.us/foodnutrition/whatsnew/FMNVPolicy.doc.

Neither parental permission nor teacher discretion may circumvent the policy, but clearly, the new policy is quite limited. Though it is a start, by no means does this policy eliminate junk food from Texas schools. Vending machines do not have to be removed from the premises. A student may still bring prohibited FMNV from home for his or her own consumption though schools may limit this with their own policies. The new policy applies only to carbonated beverages and does not cover sports drinks and other non-carbonated beverages. Also, a school day is defined as running from the start of breakfast until the last bell of the day; therefore, that means that FMNV will be permitted during after school activities. See http://www.agr.state.tx.us/foodnutrition/faq/faq.htm.