The National School Lunch Program: Lunch is for Kids Not Political Propaganda

Journal of Health Care Law and Policy Journal of Health Care Law and Policy

Volume 24 Issue 2 Article 6

The National School Lunch Program: Lunch is for Kids Not The National School Lunch Program: Lunch is for Kids Not

Political Propaganda Political Propaganda

Caroline Scanlon Beleson

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The National School Lunch Program: Lunch is for Kids Not Political

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249

THE NATIONAL SCHOOL LUNCH

PROGRAM: LUNCH IS FOR THE KIDS,

NOT POLITICAL PROPAGANDA

CAROLINE SCANLON BELESON

I. INTRODUCTION

There is a rudimentary understanding that food is a necessity to survival.

While such an understanding is not a novel concept, theories differ on the

importance of food quality and quantity in relation to and in support of particular

activities, including academic achievement. At its core, a person must eat a

certain quantity of daily calories to survive. According to the United States

Dietary Guidelines for 2015-2020, a person should consume around 2,000

calories a day.

The suggested 2,000-calorie count accounts for sex, height,

weight, and lifestyle activities.

This baseline suggestion begs further inquiry as

to what one should eat not just to survive, but to thrive. More specifically, how

much should a child eat to encourage learning in a school environment?

American children are required to attend school throughout their youth.

Beyond this legal requirement, academic achievement correlates to job

attainment and overall success.

Schoolchildren are more likely to retain

information and achieve academic success when properly nourished.

Therefore,

a properly fed student is more likely to learn more than an unfed student. Because

J.D. 2021, University of Maryland Francis King Carey School of Law. I would

like to thank the editors of the Journal of Health Care Law and Policy for their

extensive review, encouraging words, and constructive feedback. I would also like

to thank my professors at Maryland for exemplifying what it means to think

critically before politically. Importantly, this piece was written with my former fifth

grade students in mind. Eat your lunch! Finally, my deepest gratitude to my family,

in particular my husband, for the pep talks, revisions, and support needed to

complete this piece.

. U.S. DEP’T OF HEALTH AND HUM. SERVS. & U.S. DEP’T OF AGRIC., 2015–2020 DIETARY

GUIDELINES FOR AMERICANS 18 (8th ed. 2015) [hereinafter 2015-2020 DIETARY GUIDELINES].

. Id.

. Vanessa Hein et al., Predictors of Postsecondary Success, COLLEGE & CAREER READINESS &

SUCCESS CENTER 1 (Nov. 2013),

https://ccrscenter.org/sites/default/files/CCRS%20Center_Predictors%20of%20Postsecondary%20Succe

ss_final_0.pdf.

. CTRS. DISEASE CONTROL & PREVENTION, HEALTH AND ACADEMIC ACHIEVEMENT 2 (May

2014), https://www.cdc.gov/healthyyouth/health_and_academics/pdf/health-academic-achievement.pdf.

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250 JOURNAL OF HEALTH CARE LAW & POLICY [VOL. 24:2

food is a basic human need and education is legally foundational to a child’s

upbringing, the coupling of food and school requires sound policy.

In 1946, legislation concerning school lunches was introduced under the

National School Lunch Program (“NSLP”).

Still in effect today, the NSLP

provides free and reduced-cost lunches to America’s schoolchildren. The

program was enacted to ensure that children were receiving the necessary

nutrients to live a healthy life, thereby tangentially assuring that no child is

educationally disadvantaged due to hunger.

To illustrate its impact, nearly five

billion lunches were served in 2018, approximately 75% of which were free or

sold at reduced prices.

The United States Department of Agriculture (“USDA”)

reports that food served by schools makes up the bulk of many students’

nutritional consumption.

The NSLP sets forth nutritional guidelines schools must follow to receive

funding from the federal government. Each presidential administration is able to

amend the guidelines. Most recently, the Trump Administration amended three

guidelines in the pre-existing NSLP framework, effectively altering the Obama

Administration’s revisions articulated in the Healthy Hunger-Free Kids Act

(“HHFKA”).

With both support and resistance from citizens and commentators

alike, the Trump Administration specifically altered guidelines concerning

grains, sodium, and milk, resulting in more “relaxed” compliance standards for

institutions to obtain federal funding.

The Trump Administration’s amended

guidelines are a superficial departure from the objectives and missions of the

Obama Administration’s HHFKA. Though these shifted standards might not

require the most nutritionally dense or otherwise healthiest foods for children,

the guidelines ultimately reflect our nation’s evolving perception of what it

means to be healthy generally.

These changes are conducive to the long-term

goals that the NSLP and the HHFKA intended to achieve, which ultimately

benefit the students of America and society as a whole.

Section II of this Comment discusses the background of the NSLP and

various Administrations’ amendments to food guidelines.

Section III analyzes

. Richard B. Russell National School Lunch Act, Pub. L. No. 79-396, 60 Stat. 230 (1946)

(codified as amended at 42 U.S.C. §§ 1751–1769j (2019)).

. Id.

. U.S. Dep’t of Agric., National School Lunch Program, ECONOMIC RESEARCH SERVICE,

https://www.ers.usda.gov/topics/food-nutrition-assistance/child-nutrition-programs/national-school-

lunch-program/ (last updated Oct. 1, 2020).

. Id.

. See generally Child Nutrition Programs: Flexibilities for Milk, Whole Grains, and Sodium

Requirements, 83 Fed. Reg. 63775 (Dec. 12, 2018) (to be codified at 7 C.F.R. pt. 210, 215, 220, 226)

(amending the necessary grain composition, sodium intake timetable, and additional milk flavors for

school meals).

. Id.

. See infra Section IV.

. See infra Section II.

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the Trump Administration’s three amended standards and the presumptive

effects of those changes; this section also considers the critiques and legislative

intent behind the new guidelines.

Finally, Section IV concludes that the Trump

Administration’s rationale for flexible guidelines are not unique to this

Administration and ultimately do not undermine, but rather support, the NSLP’s

main objective.

II. BACKGROUND

The NSLP was established in 1946 to provide nutritious food as a safeguard

to children’s health and well-being.

Under the NSLP, schools receive federal

funding for serving lunchtime meals that meet nutritional standards provided by

the government.

If a school serves food that complies with the standards or

guidelines, the school receives six cents for each lunch served.

Compliant

schools are also reimbursed for lunches served to students that are free or

reduced-priced lunch eligible.

The total number of lunches served, including

the percentage of free and reduced-priced lunches, has steadily increased since

the introduction of the NSLP.

The growing participation in the program

indicates the program’s general success and schools’ commitments to abide by

the guidelines. It is also in schools’ best monetary interest to comply with these

guidelines.

Although payment and reimbursement are positive factors of the

NSLP, they are not the NSLP’s main objectives.

At its core, the NSLP’s goal

has been “to safeguard the health and well-being of the nation’s children and to

encourage the domestic consumption of nutritious agricultural commodities and

other food….”

This overarching goal has become nuanced over time and

. See infra Section III.

. See infra Section IV.

. Richard B. Russell National School Lunch Act, Pub. L. No. 79-396, 60 Stat. 230 (1946) (codified

as amended at 42 U.S.C. §§ 1751–1769j (2019)).

. U.S. Dep’t of Agric., National School Lunch Program (NSLP) Fact Sheet, FOOD AND NUTRITION

SERVICE 1 (Mar. 20, 2019), https://www.fns.usda.gov/nslp/nslp-fact-sheet.

. Id. at 2.

. Id. Each year, the USDA publishes guidelines in the Federal Register that a family must meet in

order for a student to be eligible for free or reduced lunches. Child Nutrition Programs: Income Eligibility

Guidelines, 85 Fed. Reg. 16050, 16050 (Mar. 20, 2020). The eligibility guidelines are based on federal

income poverty guidelines. Id. A student is eligible for free lunch if the family’s income is 130% of the

poverty line or below. Id. A student is eligible for reduced lunch if the family’s income is 130-185% of

the poverty guidelines. Id.

. U.S. Dep’t of Agric., Child Nutrition Tables, FOOD AND NUTRITION SERVICE (Dec. 13, 2019),

https://www.fns.usda.gov/pd/child-nutrition-tables. From 2016 to 2017, there was an average decrease of

161 lunches served. Id.

. Richard B. Russell National School Lunch Act, Pub. L. No. 79-396, 60 Stat. 230 (1946) (codified

as amended at 42 U.S.C. §§ 1751–1769j (2019)).

. Id.

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interpreted in ways that align with each Presidential Administration’s

perspective on food quality and nutrition.

To fully grasp how the NSLP’s current guidelines affect the Program’s

trajectory, it is important to understand the Program’s inception and subsequent

development throughout successive Administrations. Despite the common

aforementioned objective, Administrations interpret and employ qualitative and

quantitative data differently.

Unsurprisingly, each Administration’s policy

changes – or consistencies – have been challenged by the American people. The

volume and frequency of said challenges have fluctuated, but the ultimate goal

and priority of each Administration has seemingly remained the same: to ensure

that children are properly fed during the school day.

This transient nature of the NSLP is inherent in its construction. Every five

years, the NSLP is eligible for reconsideration and amendment through a process

called Child Nutrition Reauthorization (“CNR”).

Reauthorization allows

certain Congressional Committees to amend and improve the NSLP guidelines

and other federally funded nutritional programs.

Although Congress has

jurisdiction over the reauthorization process, changes to the NSLP do not happen

every year that reauthorization is eligible.

Notably, the CNR was not utilized

to amend the NSLP in 2016 largely because of the policy differences in bills

offered by the House and the Senate.

Due to this optional malleability, not all

past Administrations have introduced significant changes to the Program.

Therefore, the following analysis only evaluates contextually relevant changes

under certain Administrations.

a. Truman and Johnson: NSLP Inception and Initial Changes

Nutrition metrics were not the sole indicator of health and well-being at the

time the NSLP was implemented.

In fact, Congress introduced the policy as a

matter of national security.

National security was reportedly at risk because a

. See Colin Schwartz & Margo G. Wootan, How a Public Health Goal Became a National Law:

The Healthy, Hunger-Free Kids Act of 2010, 54 NUTRITION TODAY 67 (2019) (describing various

factors administrations considered when amending NSLP guidelines).

. Child Nutrition Reauthorization Act of 1998, 42 U.S.C. § 1751.

. Id.; Child Nutrition Reauthorization (CNR), FOOD RSCH. & ACTION CTR.,

https://frac.org/action/child-nutrition-reauthorization-cnr (last visited Feb. 11, 2021). The CNR is also a

foundation for amendments to the Child Nutrition Act of 1966. Child Nutrition Act of 1966, 42 U.S.C. §

1771.

. Child Nutrition Reauthorization (CNR): An Overview, CONG. RSCH. SERV. (Feb. 27, 2020),

https://crsreports.congress.gov/product/pdf/IF/IF10266.

. Tracking the Next Child Nutrition Reauthorization: An Overview, CONG. RSCH. SERV. 2 (May

23, 2017), https://www.everycrsreport.com/reports/R44373.html.

. Schwartz & Wootan, supra note 23, at 72.

. Gordon W. Gunderson, The National School Lunch Program: Background and Development,

U.S. DEP’T OF AGRIC., https://www.fns.usda.gov/nslp/program-history (last visited Jan. 5, 2020).

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number of men were rejected from the World War II draft due to malnutrition.

Consequently, President Truman introduced the NSLP as an attempt to eliminate

malnutrition among late teen males which would theoretically result in stronger

national security.

Purportedly, ensuring the nation’s youth received proper

nutrition would strengthen national security by increasing the number of men

eligible for the draft.

To achieve this goal, the government established nutrition

standards for school lunches in exchange for federal funding.

Though

strengthening national security was the primary goal, the Program also intended

to positively support children’s well-being by ensuring students were properly

fed.

To further advance this goal, President Lyndon B. Johnson’s

Administration later adopted the Child Nutrition Act (“CNA”) to supplement the

NSLP.

Through the CNA’s enactment, Congress declared and further

elaborated on the NSLP’s purpose, emphasizing the connection between

children’s food intake, nutrition, and ability to learn.

As a result of the success

and findings of the NSLP, Congress consequently launched the pilot “School

Breakfast Program” and other food and health-related programs as part of the

CNA.

The NSLP and CNA work in conjunction; for instance, the School

Breakfast Program and the NSLP follow the same nutrition standards.

b. Carter, Clinton, and Bush: Nutritional Advancement

From 1966 to 2010, various presidential Administrations contributed to

improving, amending, and thus molding the NSLP.

In particular, the Carter,

Clinton, and Bush Administrations emphasized the importance of nutritional

. Schwartz & Wootan, supra note 23, at 68

. See id. (stating the NSLP was established “to address childhood malnutrition given the number

of young men rejected from the World War II draft”).

. Id.

. Gunderson, supra note 29, at 20–21.

. Richard B. Russell National School Lunch Act, Pub. L. No. 79-396, § 2, 60 Stat. 230 (1946)

(codified as amended at 42 U.S.C. §§ 1751–1769j (2019)) (“It is hereby declared to be the policy of

Congress, as a measure of national security, to safeguard the health and well-being of the Nation’s

children…”).

. See Child Nutrition Act of 1966, 42 § U.S.C. 1771 (“it is hereby declared to be the policy of

Congress that these efforts shall be extended, expanded, and strengthened … “).

. Gunderson, supra note 29, at 23.

. Id. The School Breakfast Program was eventually enacted into legislation. See 42 U.S.C. §

1773 (establishing monetary assistance available for schools to provide student breakfasts in accordance

with daily nutrition requirements).

. See 7 C.F.R. § 210.1-0 (2021) (outlining meal requirements for the National School Lunch

Program); see also 7 C.F.R. § 220.8 (2021) (providing meal requirements for the School Breakfast

Program that mirror the NSLP requirements).

. Nancy Becker, Healthy School Food Timeline, CTR. FOR SCI. IN THE PUB. INT.,

http://www.heart.org/idc/groups/heart-public/@wcm/@adv/documents/downloadable/ucm_472291.pdf

(last visited Jan. 5, 2020).

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value in food. These respective eras of NSLP amendments included the

implementation of pilot programs focused on setting nutritional standards for

food and beverages, including grains and milk, and adopted a community

approach to health.

In 1979, under the Carter Administration, Congress prohibited the sale of

food with minimal nutritional value.

Food and beverages were considered of

minimal nutritional value if the product had less than 10% of the recommended

daily allowances of vitamins, minerals, or proteins.

Although well-intentioned,

the loopholes of this provision allowed schools to continue to sell unhealthy

foods and beverages because there was no mention of sodium, calories, or

saturated fats in the provision.

Under the Clinton Administration in 1994, Congress amended the NSLP to

eliminate the requirement that schools offer both whole and non-fat milk

options.

The Administration also introduced pilot programs to increase the use

of fortified fluid milk, grain-based products, and low-fat dairy products.

The

success of each pilot program was measured by student participation, meal

quality, views of students, parents, and administrators, and paperwork, among

other administrative concerns.

Most notably, the Clinton Administration

mandated school meals to be served “consistent with” the Dietary Guidelines for

Americans — a provision that has since remained in the Program.

The Dietary

Guidelines were established in 1980 and are revisited every five years to provide

recommendations for Americans at-large based on current scientific

knowledge.

Nutrition standards were again amended by Congress under the Bush

Administration in 2004.

As a departure from the Clinton Administration’s

provisions, schools were required to serve milk with a variety of fat contents and

milk could be flavored.

In conjunction with the nutritional amendments, the

Bush Administration also introduced the “Local Wellness Policy,” which

required schools to create goals for nutritional education, students’ physical

activity, and nutritional guidelines for food served on school campuses outside

. Schwartz & Wootan, supra note 23, at 68.

. Id. at 67.

. Id.

. Healthy Meals For Healthy Americans Act of 1994, Pub. L. No. 103–448, § 107, 108 Stat.

4699, 4704 (1994).

. Id. § 118.

. Id.

. Id. § 106.

. National Nutrition Monitoring and Related Research Act of 1990, 7 U.S.C. § 5341; 2015-2020

DIETARY GUIDELINES, supra note 1.

. See Child Nutrition and WIC Reauthorization Act of 2004, Pub. L. No. 108–265, 118 Stat 729

(2004) (amending nutritional standards).

. Id. § 102.

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of school-provided meals.

Still largely in effect today, schools that participate

in the NSLP are “required by federal law to establish a local school wellness

policy.”

The original goal of this policy was to promote student health and to

reduce childhood obesity.

The policy mandated that, “parents, students,

representatives of the school food authority, the school board, school

administrators, and the public” be involved in the development of the local

wellness policy.

The Bush Administration seemingly took a community-based

approach to school lunches. Though the nutritional standards of the NSLP were

determined by the government, the specifics of local wellness policies were

solely created and implemented by local school communities — facilitating a

community-inclusive effort. The local wellness policies set the framework for

the holistic approach later introduced by the Obama Administration.

c. Obama: Research-Driven, Health-Centered Provisions

In 2010, the Obama Administration enacted the Healthy Hunger Free Kids

Act (“HHFKA”).

This Act focused on ensuring students’ diets were full of

nutritious and healthy foods through the implementation of higher nutritional and

quality-related standards.

The HHFKA’s objective was to serve students

healthy food, which would teach children lessons about healthy food choices,

ultimately resulting in lifelong healthy eating habits.

As recommended by research findings from the Institute of Medicine,

HHFKA nutritional standards encouraged serving less sodium and fat, more

vegetables, fruits, and whole grains, low-fat milk, and smaller portion sizes to

help prevent childhood obesity.

Additionally, the HHFKA repealed language

from the local wellness policy, which distinctively required student and parent

involvement, and instead included language in favor of broader “community”

involvement.

Further, the HHFKA required food sold on school grounds —

. Id. § 204. The local wellness policy specifies nutrition guidelines for all food served in schools,

not just those served during breakfast and lunch. Id.

. Local School Wellness Policy, U.S. Dep’t Agri., https://www.fns.usda.gov/tn/local-school-

wellness-policy (last accessed Dec. 10, 2020).

. Child Nutrition and WIC Reauthorization Act of 2004, Pub. L. No. 108–265, 118 Stat. 729,

780–81 (2004).

. Id. at 781.

. Healthy, Hunger-Free Kids Act of 2010, 42 U.S.C. § 1751.

. Id.

. Let’s Move, Child Nutrition Reauthorization: Healthy, Hunger-Free Kids Act of 2010,

https://obamawhitehouse.archives.gov/sites/default/files/Child_Nutrition_Fact_Sheet_12_10_10.pdf

(last visited Jan. 8, 2021).

. Healthy Schools, LET’S MOVE, https://letsmove.obamawhitehouse.archives.gov/healthy-schools

(last visited Jan. 8, 2021); U.S. Dep’t of Agric., FACT SHEET: Healthy, Hunger-Free Kids Act School

Meals Implementation, FOOD & NUTRITION SERV., https://fns-

prod.azureedge.net/pressrelease/2014/009814 (last visited Jan. 8, 2021).

. Healthy, Hunger-Free Kids Act of 2010, Pub. L. No. 111-296, 124 Stat. 3183 (2010).

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256 JOURNAL OF HEALTH CARE LAW & POLICY [VOL. 24:2

outside of school meals, such as food sold in vending machines and snack shops

— to follow the same nutritional standards as those sold during mealtimes.

effect, standards for food outside of school meals were removed from the local

wellness policy and instead re-housed directly within the NSLP.

Beginning in 2014 under the HHFKA and NSLP, schools were required to

serve 100% whole grain food when serving food with grains, hit a reduced

sodium intake target by July 2017, and serve unflavored, low fat/fat-free milk,

with limited exceptions, in order to receive federal funding.

The HHFKA also

frequently referenced the Dietary Guidelines for Americans, remaining

consistent with the Clinton Administration’s implementation, mandating that

certain nutritional standards, such as milk, abide by those guidelines.

Though

schools were required to serve meals in compliance with the Dietary Guidelines

for Americans since 1996, the frequent mention of the Guidelines in the HHFKA

reinforced schools’ necessary commitment to follow the published standards.

This commitment further cemented the nutritional alignment of children’s school

lunches with American’s general daily food intake and guidelines.

As a result of these well-intentioned, but perhaps overly ambitious

standards, critics argued that the new lunches under the HHFKA failed to ensure

schoolchildren were properly fed and focused too heavily on learning.

This

shift in emphasis, it was argued, undermined the Act’s dual purpose of providing

both nutrition and food education.

Some critics remarked that the new meals

were not palatable to kids, resulting in many students refusing to eat.

Other

critics argued that “Hunger Free” was an unlikely result from the “Healthy” food

guidelines that the Obama Administration implemented.

These critics claimed

that the healthier, stricter standards resulted in food waste because students threw

away their food instead of eating and reaping the nutritional benefits.

When

. National School Lunch Program and School Breakfast Program, 81 Fed. Reg. 50132, 50133

(Jul. 29, 2016) (to be codified at 7 C.F.R. pt. 210, 220).

. Id. As previously mentioned, the local wellness policy requires schools that receive federal

funding under the NSLP to draft and implement their own local wellness policy to compliment and

support the lessons and servings of nutritious foods under the NSLP. Id.

. Nutrition Standards in the National School Lunch and Schools Breakfast Programs, 77 Fed.

Reg. 4088 (Jan. 26, 2012) (to be codified at 7 C.F.R. pt. 210, 220).

. See Healthy, Hunger-Free Kids Act of 2010, Pub. L. No. 111-296, 124 Stat 3183 (2010)

(explaining that schools must abide by the Dietary Guidelines for Americans in order to receive federal

funding).

. Id.

. U.S. GOV’T ACCOUNTABILITY OFF., IMPLEMENTING NUTRITION CHANGES WAS CHALLENGING

AND CLARIFICATION OF OVERSIGHT REQUIREMENTS IS NEEDED 20 (Jan. 2014),

https://www.gao.gov/assets/670/660427.pdf [hereinafter GAO].

. Id.

. Id. at 21.

. Id.

. Emelyn Rude, An Abbreviated History of School Lunch in America, TIME MAG. (Sept. 19,

2016), https://time.com/4496771/school-lunch-history/.

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confronted with critiques concerning specific requirements, such as whole grain

foods, the government stated that the standards were aligned with the Dietary

Guidelines for Americans, as required by the Act.

Beyond taste concerns,

schools expressed difficulty following the more stringent standards.

These

administrative concerns ultimately influenced the Obama Administration to

allow schools to apply for waivers from following the guidelines through

demonstration of hardship in procuring products compliant with the standards.

Despite these negatives, studies show that the HHFKA contributed to

overall healthier children.

In May 2014, the USDA released the HHFKA

implementation results, finding a multitude of benefits attributable to the Act,

including: an increase in children’s consumption of fruit (23%) and vegetables

(16%) at lunch; an approximate $200 million increase in school lunch revenue

within the first year of implementation; less food waste despite heightened

standards; and increased school participation in the NSLP.

d.Trump: Qualitative Health-Centered Broadening

Some of the Obama-era benefits were reversed when the Trump

Administration amended the HHFKA standards.

In July 2017, three

requirements were amended by the Trump Administration in efforts to “make

school meals great again.”

More specifically, the Trump Administration laxed

grain standards, lengthened the sodium reduction timeline, and permitted serving

flavored milk.

HHFKA critics continued to advance negative arguments despite positive

research to suggest otherwise.

Markedly, in a May 2017 press release, the

. National School Lunch Program and School Breakfast Program, 81 Fed. Reg. 50132 (Jul. 29,

2016) (to be codified at 7 C.F.R. pt. 210, 220).

. GAO, supra note 64, at 28.

. Consolidated and Further Continuing Appropriations Act, 2015, Pub. L. No. 113-235, 128 Stat.

2130, 2171 (2015); Consolidated and Further Continuing Appropriations Act, 2016, Pub. L. No. 114-

113, 129 Stat. 2242, 2279 (2016); Consolidated and Further Continuing Appropriations Act, 2017, Pub.

L. No. 115-31, 131 Stat. 135, 176 (2017).

. U.S. Dep’t of Agric., FACT SHEET: Healthy, Hunger-Free Kids Act School Meals

Implementation, FOOD AND NUTRITION SERV., https://fns-prod.azureedge.net/pressrelease/2014/009814

(last visited Jan. 6, 2021).

. Id.

. Press Release, U.S. Dep’t of Agric., Ag Secretary Perdue Moves to Make School Meals Great

Again (May 1, 2017), https://www.usda.gov/media/press-releases/2017/05/01/ag-secretary-perdue-

moves-make-school-meals-great-again [hereinafter USDA Press Release]; see also supra notes 54–60

and accompanying text (providing an overview of HHFKA standards under the Obama administration).

. Id.

. Child Nutrition Programs: Flexibilities for Milk, Whole Grains, and Sodium Requirements, 83

Fed. Reg. 63775, 63776 (Dec. 12, 2018) (to be codified at 7 C.F.R. pt. 210, 215, 220, 226).

. U.S Dep’t of Agric., FACT SHEET: Healthy, Hunger-Free Kids Act School Meals

Implementation, FOOD AND NUTRITION SERV., https://fns-prod.azureedge.net/pressrelease/2014/009814

(last visited Feb. 11, 2021) (citing to HHFKA benefits deduced from research).

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258 JOURNAL OF HEALTH CARE LAW & POLICY [VOL. 24:2

Secretary of Agriculture, Sonny Perdue, stated that schools were having trouble

meeting the “stringent” nutrition requirements and were facing increasing fiscal

burdens to adhere to those requirements.

The press release noted that the food

requirements under the HHFKA cost states and schools an additional $1.22

billion in 2015.

Secretary Perdue added that despite quantitative findings

demonstrating southern schools’ compliance with whole grain requirements,

students did not eat the regionally-popular grits when served because of the

taste.

The Trump Administration’s revisions, which became effective

immediately, seemingly sought to lower certain standards at the request of meal

preparers.

Prefaced as ways to promote flexibility and meet the local needs of

schools, the Trump Administration lowered the grain standards, requiring just

half of the weekly grains to be whole grain-rich, allowed schools more time to

meet the previously-set sodium goals, and permitted schools to serve low-fat

flavored milk.

The USDA reasoned that these flexible standards promote

cultural enrichment and encourage more milk consumption.

School Nutrition

Association (“SNA”), a non-profit organization representing nearly 60,000 meal

providers, fully supported the Trump Administration’s changes, stating that the

changes reflected years of feedback and prioritized the wants and needs of

students.

Similar to previous Administrations, the Trump Administration made

a mark on the National School Lunch Program.

III. THE TRUMP ADMINISTRATION’S EFFECT ON THE NSLP

The divisive culture of America’s current political atmosphere has tainted

objective perceptions of the Trump Administration’s amended standards.

Politically charged motivations aside, the original intent of the NSLP should be

at the forefront of an objective analysis of the Trump Administration’s new

standards. Despite the changed nutritional standards and their stark contrast to

those of the Obama era, the new standards are not catastrophic. Rather, the

standards are just another path to the unwavering goal of the NSLP: to nourish

America’s children with food that aligns with current scientific knowledge.

The Trump Administration’s path toward achieving the NSLP’s goal is

principally concerned with enhancing the administration of the Program. The

. USDA Press Release, supra note 74.

. Id.

. See id.(emphasizing comments and observations about the administrative issues of serving

lunch).

. Id.

. Diane Pratt-Heavner, SNA Responds to School Meal Flexibilities Complaints, SCH. NUTRITION

ASS’N (Apr. 3, 2019), https://schoolnutrition.org/news-publications/press-releases/2019/sna-responds-to-

school-meal-flexibilities-complaints/.

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purpose of the amended standards is “to ease operational burden and provide

school nutrition professionals the flexibility needed to successfully operate the

Child Nutrition Programs.”

More explicitly, the Trump Administration said

that the intent of the flexibilities is “to assist Program operators with specific

challenges that limit their ability to offer nutritious and appealing meals that

reflect community preferences, and that students enjoy and consume.”

Though

this purpose is not verbatim related to children’s health, the recurring need for

practicality is necessary in successfully implementing a uniform, nationwide

program. The Trump Administration notes that “the cumulative impact of the

unpredictable legislative mandates on Program operators has substantially

harmed their ability to accomplish fundamental administrative responsibilities

ranging from advance menu planning, to school district budgeting and

competitive procurement of allowable foods.”

Due to the ever-changing nature

of the NSLP, a sense of stability and predictability is arguably important to meal-

preparers and children alike.

The 2018 amendments to the NSLP guidelines have been criticized as an

end to the Obama Administration’s hard work, or otherwise indifferent to

children’s health, favoring convenience over nutrition.

However, these

purportedly flexible guidelines could now put the HHFKA’s objectives to the

test; if students did effectively learn how to make healthy choices, those students

might still choose the healthier food option. In this sense, the Trump

Administration’s lunch plans are actually complimentary, rather than

contradictory, to the HHFKA’s objectives. In fact, the new standards align with

the HHFKA’s guiding authority, the Dietary Guidelines for Americans.

Moreover, these standards are necessary due to the practicalities of the Program’s

administration; a noticeable theme in the Trump Administration’s changes relate

to feasibility.

a. More Flexible Grain Standards

Under the Trump Administration’s amendment, half of the grains served in

the Program are required to be whole grain, in contrast to the HHFKA guideline

that required one hundred percent of grains served to be whole grain.

The

HHFKA stated that the whole-grain requirement was implemented because of

. Child Nutrition Programs: Flexibilities for Milk, Whole Grains, and Sodium Requirements, 83

Fed. Reg. 63775, 63784 (Dec. 12, 2018) (to be codified at 7 C.F.R. pt. 210, 215, 220, 226).

. Child Nutrition Programs: Flexibilities for Milk, Whole Grains, and Sodium Requirements, 82

Fed. Reg. 56703, 56705 (Nov. 30, 2017) (to be codified at 7 C.F.R. pt. 210, 215, 220, 226).

. Id. at 56709.

. Julia Jacobs, Trump Administration Rolls Back Obama-Era Rules for School Lunches, THE

NEW YORK TIMES (Dec. 8, 2018), https://www.nytimes.com/2018/12/08/us/trump-school-lunch-

usda.html.

. Child Nutrition Programs: Flexibilities for Milk, Whole Grains, and Sodium Requirements, 83

Fed. Reg. 63775, 63776 (Dec. 12, 2018) (to be codified at 7 C.F.R. pt. 210, 215, 220, 226).

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260 JOURNAL OF HEALTH CARE LAW & POLICY [VOL. 24:2

the connection between whole grains and lower body weight.

The Act

acknowledged that many commenters were concerned with the price of whole-

grain foods.

In response, the Act noted that whole-grain products were

available to purchase through USDA Foods, which is a service available to

school lunch providers.

However, school lunch providers were not satisfied

because, despite the option to purchase from the USDA, meeting the whole-grain

requirements was still too costly.

The fifty percent whole-grain standard was “recommended by the School

Nutrition Association, representing 57,000 school nutrition professionals.”

fact, “due to a long history of administrative and legislative actions allowing

exemptions,” the HHFKA whole-grains standard was never fully implemented

nationwide.

Schools requested numerous exceptions and exemptions over the

years, including for pasta, due to the difficulties in meeting the stringent

standard.

Now, the amended standard implemented by the Trump

Administration “is consistent with USDA’s commitment to alleviate difficult

regulatory requirements, simplify operational procedures, and provide school

food authorities ample flexibility to address local preferences.”

Price remains a chief concern regarding whole-grain products.

Another

emerging complaint, however, focuses on the taste of whole-grain foods.

In a

report announcing the changes, the Government acknowledged that “the changes

are only truly successful when all of America’s schoolchildren eat and enjoy the

school meals.”

100

Thus, these changed standards under the Trump

Administration might increase participation in the NSLP because children will

more likely eat the school meals, thereby actually providing children with the

nutrition they need. Furthermore, the Administration’s changes are still in

alignment with the 2020 Dietary Guidelines for Americans, which recommends

that an individual’s consumption of grains be half whole-grain.

101

. Nutrition Standards in the National School Lunch and Schools Breakfast Programs, 77 Fed.

Reg. 4088, 4093 (Jan. 26, 2012) (to be codified at 7 C.F.R. pt. 210, 220).

. Id.

. GAO, supra note 70, at 27.

. Child Nutrition Programs: Flexibilities for Milk, Whole Grains, and Sodium Requirements, 83

Fed. Reg. 63775, 63781 (Dec. 12, 2018) (to be codified at 7 C.F.R. pt. 210, 215, 220, 226).

. Id.

100

. Id. at 63776.

101

. 2015-2020 DIETARY GUIDELINES, supra note 1, at 15.

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Studies have shown that despite the relaxed whole-grain standards, schools

continue to serve plenty of whole-grain rich options.

102

After all, these amended

guidelines only set the floor, or the minimum, for the amount of whole-grains

served. Said differently, “schools are not required to change their menus and can

choose whether or not to use the flexibilities this rule provides.”

103

Thus, schools

can — and often do — provide whole-grain food at a higher rate than is required.

Ultimately, students are put to the test: will they choose whole-grain food on

their own?

b. Extended Sodium Reduction Timeline

The amendment to sodium guidelines illustrates the surprisingly

complimentary nature of the Trump Administration’s flexible regulations to the

HHFKA. The HHFKA originally planned for a steady decrease in the level of

sodium served in meals.

104

An important reason for the sodium reduction is the

effect that it has on a food’s nutritional content.

105

More specifically, reduction

in sodium content would provide children with more nutrient-dense food, which

would ultimately help children maintain a healthy bodyweight and better overall

health.

106

To achieve these goals, the HHFKA established two sodium targets for

schools. Target 1 requires a lunch meal for students in grades 6-8 to average less

than 1,360 milligrams of sodium; target 2 requires a lunch meal for students in

grades 6-8 to average less than 1,035 milligrams of sodium.

107

In comparison,

the Dietary Guidelines for Americans recommends that children aged 9-13 years

consume less than 2,200 milligrams of sodium per day.

108

The Trump Administration’s new flexible timeline on sodium reduction

still, in theory, supports a goal of healthy weight.

109

While the original sodium

targets 1 and 2 remain, the timeline has shifted to give school meal preparers

102

. Whole Grain Rich Options Abound in Schools, TRAY TALK (Aug. 26, 2019),

https://traytalk.org/2019/08/26/despite-flexible-regulations-whole-grain-rich-options-continue-to-grow-

in-schools/#more-4749.

103

. Child Nutrition Programs: Flexibilities for Milk, Whole Grains, and Sodium Requirements, 83

Fed. Reg. at 63777.

104

. Nutrition Standards in the National School Lunch and Schools Breakfast Programs, 77 Fed.

Reg. 4088, 4097 (Jan. 26, 2012) (to be codified at 7 C.F.R. pt. 210, 220). Target 1 was scheduled for

school year 2014-2015; target 2 was scheduled for school year 2017-2018. Id.

105

. 2015-2020 DIETARY GUIDELINES, supra note 1, at 58.

106

. Nutrition Standards in the National School Lunch and Schools Breakfast Programs, 77 Fed.

Reg. at 4092.

107

. Id. at 4098. Target 1 requires students in K-5 are served lunch with less than 1,230 milligrams

of sodium and students in grades 9-12 are served lunch with less than 1,420 milligrams of sodium. Id.

Target 2 requires students in K-5 are served lunch with less than 935 milligrams of sodium and students

in grades 9-12 are served lunch with less than 1,080 milligrams of sodium. Id.

108

. 2015-2020 DIETARY GUIDELINES, supra note 1, at 98. For persons aged 14 years and older, the

Guidelines recommend intake of less than 2,300 milligrams of sodium per day. Id.

109

. See id. (clarifying that the recommended sodium for adults is less than 2,300 milligrams of

sodium per day).

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262 JOURNAL OF HEALTH CARE LAW & POLICY [VOL. 24:2

more time to meet these targets.

110

More specifically, schools have through the

end of school year 2023-2024 to reach sodium target 1 and until school year

2024-2025 to meet sodium target 2.

111

The targets are proportional to age.

112

pushing back the target 2 date and extending the time to attain target 1, the new

timeline allows the findings from the Program to be researched and published in

the 2020 Dietary Guidelines for Americans, which the NSLP is required to abide

by.

113

c. Availability of Flavored Milk

Previously, the HHFKA required schools to offer solely unflavored low-fat

milk in an effort to eliminate sugar consumption in drinks.

114

The HHFKA

promoted and encouraged students to drink milk in hopes that students would get

used to unflavored milk.

115

However, there was a decrease in milk consumption

as a consequence of those standards.

116

According to USDA’s Economic

Research Service, data “shows a decrease in fluid milk consumption from 197

pounds per person in 2000 to 154 pounds per person in 2016.”

117

To entice students to drink milk, the Trump Administration has allowed

schools to serve low-fat flavored milk.

118

The guideline still insists that the milk

be low-fat, but the flavoring is predicted to aid in increasing milk

consumption.

119

The primary oppositional concern was the increase in sugar

consumption.

120

Though times and opinions change, the original statutory

language of the National School Lunch Act stated that “students must be

provided with a variety of fluid milk and milk may be flavored or unflavored;

there is no statutory requirement” to serve milk with a certain level of fat.

121

Thus, although the Obama Administration’s goal in HHFKA was to decrease

110

. Child Nutrition Programs: Flexibilities for Milk, Whole Grains, and Sodium Requirements, 83

Fed. Reg. at 63782.

111

. Id.

112

. Id.

113

. Id. at 63783.

114

. Nutrition Standards in the National School Lunch and Schools Breakfast Programs, 77 Fed.

Reg. 4088, 4095 (Jan. 26, 2012) (to be codified at 7 C.F.R. pt. 210, 220). The standards allowed flavored

fat-free milk. Id.

115

. Nutrition Standards in the National School Lunch and Schools Breakfast Programs, 77 Fed.

Reg. at 4133.

116

. Child Nutrition Programs: Flexibilities for Milk, Whole Grains, and Sodium Requirements, 83

Fed. Reg. at 63779.

117

. Id.

118

. USDA Press Release, supra note 74.

119

. Id. This amendment was greeted with much protest; The USDA received 5,441 out of 5,546

letters that opposed the new milk standard. Child Nutrition Programs: Flexibilities for Milk, Whole

Grains, and Sodium Requirements, 83 Fed. Reg. at 63777.

120

. Child Nutrition Programs: Flexibilities for Milk, Whole Grains, and Sodium Requirements, 83

Fed. Reg. at 63779.

121

. Id. at 63780.

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sugar consumption in liquids, the overarching objective of the milk program in

the NSLP is to encourage milk consumption.

122

Further, in response to the

potential increase in sugar intake, “the National Milk Producers Federation and

the International Dairy Foods Association noted that milk processors have

significantly reduced the calorie and sugar content of flavored milk in recent

years.”

123

The NSLP originally required milk to be served because it provides

students with valuable nutrition; in fact, milk cannot even be substituted for water

— schools must provide milk at lunch.

124

Further, if a school offers flavored

milk, that school must also offer unflavored milk at the same meal service.

125

The Trump Administration has argued that students threw away their food and

beverages served under the HHFKA, ultimately reducing milk consumption.

126

The intended goal of offering low-fat flavored milk as an option was to ensure

that students consumed at least some type of milk, rather than none at all.

127

Although non-fat, non-flavored milk may be healthier if consumed, the purpose

of the NSLP milk standard was to encourage students to drink milk to obtain

more nutrients, a purpose that this amended guideline may still achieve.

This flexible guideline not only aligns with the statutory language of the

NSLP, but the standard further compliments the Obama Administration’s

HHFKA because, as was the case with students choosing between whole grain

and non-whole grain options, it allows students the opportunity to choose

unflavored milk over flavored milk. If the objective of the HHFKA was to

encourage students to drink and choose unflavored milk, the amended guidelines

provide students the setting and opportunity to put their preferences to the test.

d. Trump Administration Amendments Comport with Original Legislative Intent

Since different advocacy groups inform the legislature of their opinions, the

intentions of the NSLP reflect opinions and research from a variety of people.

Although particular guidelines may alter every five years, many of the Program’s

overarching goals and objectives remain the same.

The Trump Administration amended the food guidelines because of

qualitative evidence including: statements from teachers, students, lunch

coordinators, and lunch staff.

128

The use of qualitative data to amend the

122

. See Child Nutrition Act of 1966, 42 U.S.C. § 1772 (providing one of the purposes of the

HHFKA is “to encourage consumption of fluid milk by children in the United States…”).

123

. Child Nutrition Programs: Flexibilities for Milk, Whole Grains, and Sodium Requirements, 83

Fed. Reg. at 63779.

124

. Id. at 63780.

125

. Id.

126

. USDA Press Release, supra note 74.

127

. Id.

128

. Id.

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264 JOURNAL OF HEALTH CARE LAW & POLICY [VOL. 24:2

guidelines is not unique to the Trump Administration. For instance, the Obama

Administration received comments from:

[N]utrition, health, and child advocates at the national, state and local

levels; SAs that administer the school meal programs; school

districts/boards; schools; school food service staff; superintendents,

principals, and teachers; food manufacturers and distributors; food

industry representatives; food service management companies;

academia; nutritionists/dietitians; community organizations; parents

and students; and many other interested groups and individuals.

129

Ultimately, qualitative evidence, including feedback from involved and affected

communities, has always played a role in amending the NSLP’s guidelines.

In addition to utilizing the same method, each Administration has remained

true to the original legislative intent of the NSLP: to provide students with food

during the school day to support the learning process. The Trump Administration

may have worked towards that objective differently than the Obama

Administration did, but the amended guidelines still support the legislative

intent. This intent, according to Secretary Purdue, is to ensure that students

actually eat lunches and receive nutrition rather than throw the food away.

130

Organizations have advocated for the very amendments the Trump

Administration promulgated. For example, in 2018, the School Nutrition

Association advocated for more flexible standards to create a sustainable

system.

131

The SNA advocated for flexible standards because their self-

distributed surveys showed that the number one barrier to the NSLP’s success is

student acceptance of the provided meals.

132

Therefore, the SNA suggested more

flexible standards to Congress to encourage students to eat the meals provided.

Ultimately, the Trump Administration relied on qualitative data from local

schools and advocacy groups to grant a more permanent flexibility in meal

requirements — a leniency that merely extends the exemptions afforded by the

Obama Administration.

133

Furthermore, these amended guidelines do not preclude a school from

continuing to serve food with the more restrictive standards alongside those with

129

. Nutrition Standards in the National School Lunch and Schools Breakfast Programs, 77 Fed.

Reg. 4088, 4089 (Jan. 26, 2012) (to be codified at 7 C.F.R. pt. 210, 220).

130

. USDA Press Release, supra note 74.

131

. 2018-19 Annual Report President’s Letter, SCH. NUTRITION ASS’N,

https://schoolnutrition.org/aboutsna/annualreport/. The SNA is “a national, nonprofit professional

organization representing more than 55,000 members who provide high-quality, low-cost meals to

students across the country.” Vision & Mission, SCH. NUTRITION ASS’N,

https://schoolnutrition.org/aboutsna/visionmission/ (last visited Jan. 8, 2021).

132

. 2019 School Nutrition Trends Summary Report, SCH. NUTRITION ASS’N iii,

https://schoolnutrition.org/2019-school-nutrition-trends-summary-report/ (last visited Jan. 8, 2021).

133

. See supra note 71 and accompanying text.

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more flexible standards.

134

If a school provides food meeting both the flexible

and restrictive standards, students will be “put to the test” to opt for the healthier

option. Such a process would demonstrate whether the stricter guidelines under

the Obama Administration did in fact teach students to choose “healthier” foods.

Regardless, the Trump Administration’s amendments still attempt to realize this

goal of the Obama Administration by providing students the opportunity to make

healthy food choices autonomously. Such decision-making processes are crucial

because students that make these choices as young consumers will one day

exercise personal responsibility over their own dietary habits as adults.

Even if students are unable to make healthier choices independently, the

NSLP still maintains the local school wellness policy legislation.

135

The local

school wellness policy could prove useful and fruitful legislative ground for

further community improvement and involvement. For those communities

disapproving of the Trump Administration’s flexible guidelines, the local

wellness policy “provides students, parents and interested community members

an important opportunity to influence the school nutrition environment at

large.”

136

As such, the local school wellness policy allows the community to get

involved in food decisions for students within their area. In addition to local

communities, state agencies also have “discretion to set stricter requirements that

are not inconsistent with the minimum nutrition standards for school meals.”

137

Therefore, states that disagree with the Trump Administration’s flexible

standards also have the ability to provide stricter guidelines. The amended

standards to the NSLP merely provide greater options for both schools and

students.

IV. CONCLUSION

The NSLP has been focused on children’s health since its inception.

Regardless of the specific standards or particularized objectives of each

Presidential Administration, the amendments to the NSLP primarily concern

children’s health, and ultimately reflect the health community’s present

knowledge of what is safe and healthy for children to eat. In April 2020, a federal

court in Maryland struck down the Trump Administration’s amended standards

upon a finding that the Administration did not follow proper protocols in

informing the public.

138

In the early stages of President Biden’s Administration

amidst the global pandemic, President Biden has extended the access and

134

. See Child Nutrition Programs: Flexibilities for Milk, Whole Grains, and Sodium Requirements,

83 Fed. Reg. 63775 (Dec. 12, 2018) (to be codified at 7 C.F.R. pt. 210, 215, 220, 226) (asserting that the

flexibilities simply provide the minimum dietary requirements for a school to receive federal funding).

135

. Id. at 63782.

136

. Id. at 63780.

137

. Id.

138

. Ctr. for Sci. in the Pub. Int. v. Perdue, 438 F. Supp. 3d 546 (D. Md. 2020).

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266 JOURNAL OF HEALTH CARE LAW & POLICY [VOL. 24:2

benefits of the SNAP and NSLP programs due to virtual learning; certainly his

actions align with the NSLP purpose.

139

Ultimately, whether an administration

prefers logistical efficiency or nutritional superiority, historically the end result

has remained the same. As long as the NSLP is in effect, its overarching objective

is to provide school children with food and nutrition.

139

. Press Release, U.S. Dep’t of Agric., USDA Issues Pandemic Flexibilities for Schools and Day

Care Facilities through June 2022 to Support Safe Reopening and Healthy, Nutritious Meals (Apr. 18,

2021), https://www.usda.gov/media/press-releases/2021/04/20/usda-issues-pandemic-flexibilities-

schools-and-day-care-facilities.