When Agriculture Secretary Sonny Perdue announced late last year that he was rolling back science-based nutrition standards for school meals, it was a blow to student health. But according to two lawsuits filed earlier today in federal court, his agency’s actions may also have been illegal.
The first lawsuit, filed in the District of Maryland by Democracy Forward, was brought on behalf of two health advocacy groups, the Center for Science in the Public Interest (CSPI) and Healthy School Food Maryland. The second complaint was filed in the Southern District of New York by the New York state attorney general on behalf of a multi-state coalition including California, Illinois, Minnesota, New Mexico and Vermont.
Both lawsuits center around a new rule issued by the Trump administration’s U.S. Department of Agriculture (USDA) which slashed the Healthy, Hunger-Free Kids Act’s (HHFKA) whole-grain-rich standard, meaning that now only half of the grain-based foods served in school meals have to be whole-grain-rich. (Previously, all grain foods served to kids having to contain at least half whole grains.) The rule also delayed further sodium reduction in school meals and eliminated an even more ambitious sodium reduction target. (A third roll-back, one related to the fat content in flavored milk, is not being challenged in either lawsuit.)
This excerpt from the Maryland complaint sums up the crux of the legal challenge. I’ve inserted paragraph breaks for ease of reading:
In [rolling back school meal standards,] the USDA unlawfully departed from Congress’s unambiguous directive that it determine school meal requirements based on nutrition science, and instead relied on impermissible and unsound extra-statutory factors such as students’ perceived taste preferences for less healthy foods and some schools’ desire for operational “flexibility.”
The Department also failed to explain, or even acknowledge, that its actions constituted a fundamental change in its interpretation of key statutes, by which it untethered the nutrition standards from the Guidelines. Further, the Department provided no adequately reasoned explanation for modifying existing standards.
Nor did the Department adequately consider or respond to a wealth of evidence in the record or comments—from parents, advocacy groups, school nutrition experts, researchers, and food manufacturers alike—that opposed weakening the standards. Among other things, those comments suggested alternative approaches that would have preserved the standards’ scientific integrity, while addressing operational and practical concerns and protecting the health of children.
Finally, the Department employed a deeply flawed administrative process that deprived the public of fair notice of the nature and scope of the changes adopted in the final rule—all in violation of the basic dictates of the Administrative Procedure Act.
The New York and Maryland lawsuits both contend that in deviating from science-based nutrition standards, the USDA has now put approximately 30 million children, including approximately 22 million low-income children, at greater risk of poor health due to increased consumption of sodium and decreased consumption of whole grains.
And as CSPI noted in its press release, of the more than 85,000 public comments submitted by the public regarding the roll-backs, the vast majority favored keeping the original HHFKA standards for sodium (96%) and whole grains (97%). The USDA’s own data also showed that virtually all schools (99%) were already meeting both standards.
I’ll of course keep you updated here as these two lawsuits progress in the courts.
Follow TLT on Facebook, Twitter and Instagram, subscribe to Lunch Tray posts, and download my FREE 50-page guide, “How to Get Junk Food Out of Your Child’s Classroom.” You can also now pre-order my new book Kid Food: The Challenge of Feeding Children in a Highly Processed World —coming out this fall!