Last April, I told you about two federal lawsuits seeking to block a 2018 U.S. Department of Agriculture (USDA) rule that weakened two key school meal nutrition standards.
Yesterday, the Maryland District Court handed public health advocates a victory by vacating that rule.
But based on my own reading of the court’s opinion, the ruling is a narrow one. If it’s determined to do so, the Trump administration could well succeed in reinstating those same weaker standards through a new rule-making process.
The Background: “Making School Meals Great Again”
Back in 2017, Agriculture Secretary Sonny Perdue promised to “Make School Meals Great Again” by offering districts more “flexibilities” with respect to nutrition standards. Soon after, the USDA issued an Interim Final Rule which proposed (1) delaying by three years the Healthy, Hunger-Free Kids Act (HHFKA)’s planned reduction of sodium in school meals; (2) continuing to allow districts to seek a waiver to serve kids fewer whole grains; and (3) allowing schools to offer flavored milk in a 1-percent milk fat variety. (Previously, only skim flavored milk was permissible under the HHFKA.)
However, when the USDA issued its Final Rule in 2018, it stunned the public health community (and caught this blogger flat-footed) by going much further than the Interim Final Rule had envisioned. The Final Rule not only delayed sodium reduction in school meals, it completely eliminated the HHFKA’s final sodium reduction target. And instead of continuing to allow districts to reduce whole grains on a case-by-case basis, the Final Rule simply slashed the whole grain requirement across the board.*
The Maryland Lawsuit
In response, the Center for Science in the Public Interest (CSPI) and Healthy School Food Maryland filed a federal lawsuit in Maryland, while a separate lawsuit was filed by a coalition of states (New York, California, the District of Columbia, Illinois, Minnesota, New Mexico and Vermont) in the Southern District of New York.
The Maryland plaintiffs offered four main arguments for vacating the Final Rule:
- the weaker standards are inconsistent with the federal Dietary Guidelines, to which school meal standards are supposed to conform;
- the USDA didn’t appropriately respond to public comments on the Interim Final Rule (over 95 percent of which had opposed the rollbacks);
- the USDA shouldn’t have been able to look beyond nutrition science in formulating the Final Rule; and
- the Final Rule represented a significant deviation from the Interim Final Rule, which is a violation of the Administrative Procedure Act, the law that governs how federal agencies create their regulations.
The Maryland District Court’s Ruling
Maryland District Judge George Hazel agreed with the last of those arguments, finding that the Final Rule wasn’t a “logical outgrowth” of the Interim Final Rule. Regarding the sodium standard, he wrote: “There is a fundamental difference between delaying compliance standards . . . and eliminating those standards altogether.” And regarding whole grains, he found the USDA took “what was a limited, case-by-case exemption” and turned it into “the new rule across the board.” (The plaintiffs hadn’t challenged the rule relating to flavored milk.)
On that basis only, he vacated the rule and remanded it to the USDA.
But the rest of the plaintiffs’ arguments were rejected by the court. While Hazel agreed that the USDA needs to consider the Dietary Guidelines and nutrition science in formulating school nutrition standards, he ruled that the agency is also “permitted to consider student taste preferences, operational flexibilities, and product innovation.” That’s arguably a big blow to the public health community, which has long argued that student health should trump these other considerations in the decision-making process.
As for the public comments opposing the Interim Final Rule, Hazel noted that the legal standard for any agency’s response to public comments “is not particularly demanding,” and that the USDA had met this low bar.
If the USDA is determined to undermine the HHFKA’s sodium and grain standards, it will have to start its rule-making process all over again. But if it chooses to do so, this time around it will likely ensure there are no deviations between the Interim Final and Final Rules.
Then it will be up to future plaintiffs to again challenge the weakened standards in another district court. But with the Maryland court having rejected the more substantive objections to these standards, such a challenge could prove more difficult.
* Previously, all grain foods in schools had to be “whole grain-rich,” meaning they had to contain at least half whole grains. Now, only half of the grain-based foods must be whole-grain-rich, meaning 75 percent of the grain foods served to kids can be made from white flour or other refined grains.
“A blueprint for how to raise healthy eaters in a fast-food culture”—New York Times
“One of the Best Books of 2019 (So Far)” — Real Simple
“Everyone who has children should read Kid Food. And everyone who doesn’t should read it, too.” — Eric Schlosser, Fast Food Nation.
Look for my new book, Kid Food: The Challenge of Feeding Children in a Highly Processed World. For more information, visit bettinasiegel.com.