DAR File No. 38628

Education, Administration

Rule R277-719

Standards for Selling Foods Outside of the Reimbursable Meal in Schools

Notice of Proposed Rule

(Amendment)

DAR File No.: 38628
Filed: 06/16/2014 04:07:59 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

Rule R277-719 is amended to bring the rule into alignment with updated regulations provided by the U.S. Secretary of Agriculture for all foods sold in local education agencies (LEAs).

Summary of the rule or change:

Amendments to Rule R277-719 remove definitions that are no longer in the application and provide new language on competitive food standards; add new requirements on the sale of competitive foods in schools; provide new sections on fund-raising using food/beverages and LEA wellness policies; and provide requirements for schools not participating in the National School Lunch/Breakfast programs to adopt written policies and require designation of an individual to provide documentation during audits to show compliance with this rule.

State statutory or constitutional authorization for this rule:

• Subsection 53A-1-401(3)
• Subsection 53A-1-402(1)(e)

Anticipated cost or savings to:

the state budget:

The amendments provide criteria consistent with updated regulations provided by the U.S. Secretary of Agriculture which likely will not result in a cost or savings to state government.

local governments:

The amendments provide criteria consistent with updated regulations provided by the U.S. Secretary of Agriculture which likely will not result in a cost or savings to local government (LEAs) because the program is funded by the Legislature.

small businesses:

The amendments provide criteria consistent with updated regulations provided by the U.S. Secretary of Agriculture which likely will not result in a cost or savings to small businesses.

persons other than small businesses, businesses, or local governmental entities:

The amendments provide criteria consistent with updated regulations provided by the U.S. Secretary of Agriculture which likely will not result in a cost or savings to persons other than small businesses, businesses, or local government entities.

Compliance costs for affected persons:

The amendments provide criteria consistent with updated regulations provided by the U.S. Secretary of Agriculture which likely will not result in any compliance costs for affected persons.

Comments by the department head on the fiscal impact the rule may have on businesses:

I have reviewed this rule and I believe that there is likely no fiscal impact on businesses.

Martell Menlove, State Superintendent

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Education
Administration
250 E 500 S
SALT LAKE CITY, UT 84111-3272

Direct questions regarding this rule to:

• Carol Lear at the above address, by phone at 801-538-7835, by FAX at 801-538-7768, or by Internet E-mail at [email protected]

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

07/31/2014

This rule may become effective on:

08/07/2014

Authorized by:

Carol Lear, Director, School Law and Legislation

R277. Education, Administration.

R277-719. Standards for Selling Foods Outside of the Reimbursable Meal in Schools.

R277-719-1. Definitions.

A. "Board" means the Utah State Board of Education.

B. "[Foods of minimal nutritional value]Competitive foods" as provided in 7 CFR 210, [Appendix B, are:]means all food and beverages, other than meals reimbursed under programs authorized by the Richard B. Russell National School Lunch Act, 42 U.S.C., and the Child Nutrition Act of 1966, available for sale to students on the school campus during the school day.

[(1) Soda Water-A class of beverages made by absorbing carbon dioxide in potable water. The amount of carbon dioxide used is not less than that which will be absorbed by the beverage at a pressure of one atmosphere and at a temperature of 60 degrees F. It either contains no alcohol or only such alcohol, not in excess of 0.5 percent by weight of the finished beverage, as is contributed by the flavoring ingredient used. No product shall be excluded from this definition because it contains artificial sweeteners or discrete nutrients added to the food such as vitamins, minerals and protein;

(2) Water Ices-As defined by 21 CFR 135.160 Food and Drug Administration Regulations except that water ices which contain fruit or fruit juices are not included in this definition;

(3) Chewing Gum-Flavored products from natural or synthetic gums and other ingredients which form an insoluble mass for chewing;

(4) Certain Candies-Processed foods made predominantly from sweeteners or artificial sweeteners with a variety of minor ingredients which characterize the following types:

(a) Hard Candy-A product made predominantly from sugar (sucrose) and corn syrup which may be flavored and colored, is characterized by a hard, brittle texture, and includes such items as sour balls, fruit balls, candy sticks, lollipops, starlight mints, after dinner mints, sugar wafers, rock candy, cinnamon candies, breath mints, jaw breakers and cough drops;

(b) Jellies and Gums-A mixture of carbohydrates which are combined to form a stable gelatinous system of jelly-like character, and are generally flavored and colored, and include gum drops, jelly beans, jellied and fruit-flavored slices;

(c) Marshmallow Candies-An aerated confection composed as sugar, corn syrup, invert sugar, 20 percent water and gelatin or egg white to which flavors and colors may be added;

(d) Fondant-A product consisting of microscopic-sized sugar crystals which are separated by thin film of sugar and/or invert sugar in solution such as candy corn, soft mints;

(e) Licorice-A product made predominantly from sugar and corn syrup which is flavored with an extract made from the licorice root;

(f) Spun Candy-A product that is made from sugar that has been boiled at high temperature and spun at a high speed in a special machine; and

(g) Candy Coated Popcorn-Popcorn which is coated with a mixture made predominantly from sugar and corn syrup.

]C. "Eating area," for purposes of this rule, means the place where the reimbursable meal is served or eaten. In some schools, this may include the entire campus.

D. "LEA" means a local education agency, including local school boards/public school district or charter school.

E. "Nutrition Standards" are defined in 7 CFR 210.11 and are hereby incorporated by reference.

F. "Reimbursable meal" means a meal which meets the requirements of 7 CFR 210, 211, 215, 220 or 225 which are incorporated by reference and can be claimed for payment.

G. "School day" means the period from the midnight before, to 30 minutes after the end of the official school day.

H. "School campus" means all areas of the property under the jurisdiction of the school that are accessible to students during the school day.

[D]I. "Unit" means per container, package or amount served.

[E]J. "USOE" means the Utah State Office of Education.

[C]K. "Vending machine" means a self-service device that, upon insertion of a coin, paper currency, token, card or key, dispenses unit servings of food in bulk or in packages.

 

R277-719-2. Authority and Purpose.

A. This rule is authorized by Utah Constitution Article X, Section 3 which vests general control and supervision of public education in the Board, Section 53A-1-401(3) which allows the Board to adopt rules in accordance with its responsibilities, Section 53A-19-201(1) which allows the Board to set standards relating to the use of school lunch revenues, and Section 53A-1-402(1)(e) which requires the Board to establish rules concerning school productivity and cost effectiveness measures and federal programs.

B. The purpose of this rule is to outline requirements for [school district and charter school]LEA policies regarding foods sold outside of the reimbursable meal service.

 

R277-719-3. [District and School]LEA Policies Regarding Vending Machines.

A. Each [school district and charter school]LEA shall develop and implement a policy for schools that choose to provide vending machines.

B. The policy shall include:

(1) a requirement that all agreements for vending machines be in writing in a contract form approved by the local board of education or charter school governing board;

(2) accepted uses of vending machine income; and

(3) generally accepted accounting procedures, including periodic reports to the [district]LEA of vending machine receipts and expenditures.

 

R277-719-4. [District and School ]LEA Policies Regarding [Other ]Competitive Food Sales on Campus.

[A. Each charter school and school district shall adopt a written policy for the sale of all foods that are not part of the reimbursable lunch, breakfast or after-school snack programs (i.e., vending, a la carte or other food sales). The policy shall apply to all foods sold anywhere on school grounds during the school day when school is in session in all areas of the school accessible to students.

B. The policy may:

(1) prohibit the sale of foods of minimal nutritional value.

(2) limit all foods to no more than 300 calories per unit.

(3) prohibit foods:

(a) that are more than 35 percent total fat (not including nuts, seeds, non-fat and low-fat dairy);

(b) in which more than 10 percent of the total calories come from saturated fat (not including nuts, seeds, non-fat and low-fat dairy);

(c) that contain any trans fats;

(d) that list "caffeine" as an ingredient;

(e) in which more than 35 percent of the product is sugar by weight (not including 100 percent fruit or vegetable juice with no added sugars; fruits; vegetables; nonfat or low-fat milk or yogurt); or

(f) with a sodium content greater than 200 mg per portion (not including 100 percent fruit or vegetable juice; fruits; vegetables; nonfat or low-fat milk, yogurt or cheese).

(4) limit beverage size to no more than 20 ounces, excluding water.

]A. These nutrition standards apply to the sale of competitive food in all schools offering programs authorized by the Richard B. Russell National School Lunch Act and the Child Nutrition Act of 1966 on the school campus during the school day.

B. The profits from competitive foods shall accrue either to a non-profit school account or to the non-profit school food service account. Profits from competitive foods may not accrue to the benefit of a for-profit account or entity.

C. If the competitive food(s) were purchased using food service funds, the cost of the item shall be reimbursed to the food service account.

D. A competitive food item that is sold by an LEA or an employee or agent shall meet all the competitive food nutrient standards as outlined in 7 CFR 210.11. LEAs may use a Smart Snacks calculator, available online, to verify that food sold meets competitive food standards.

E. Foods which are exempt from the nutrition standards are listed in 7 CFR 210.11(c) - (m).

 

R277-719-5. Fundraising Using Food/Beverages.

A. These fundraising standards apply to school fundraising using food or beverages in all schools offering programs authorized by the Richard B. Russell National School Lunch Act and the Child Nutrition Act of 1966 on the school campus during the school day.

B. Competitive food and beverage items sold during the school day shall meet nutrition standards for competitive foods. A special exemption is allowed for the sale of food or beverages that do not meet the competitive food standards for the purpose of conducting infrequent school-sponsored fundraisers.

C. LEAs may hold specifically exempted fundraisers no more than three times per year per site, with each fundraiser lasting no longer than five consecutive school days.

(1) The superintendent or principal of the LEA or school shall designate an individual to maintain records of fundraisers at which foods and beverages that do not meet competitive food standards are sold.

(2) Career and Technical Education programs may make written requests for fundraisers, in addition to the three allowed in R277-519-5C, to the USOE Child Nutrition Program Director.

 

R277-719-6. LEA Wellness Policies.

A. Wellness policy requirements apply in all schools offering programs authorized by the Richard B. Russell National School Lunch Act and the Child Nutrition Act of 1966 on the school campus during the school day.

B. Each LEA participating in the National School Lunch Program or the School Breakfast Program shall establish a local school wellness policy for all schools under their jurisdiction. The written policy shall, at a minimum, include all the elements required in 7 CFR 210.30.

 

R277-719-[5]7. Miscellaneous Provisions.

A. Schools not participating in the National School Lunch/Breakfast programs shall adopt a written policy for the sale of all foods that are not part of the meal service including vending, a la carte or other food sales. The policy shall apply to all foods sold anywhere on school grounds during the school day when school is in session in all areas of the school accessible to students.

B. The policies may use the definitions for competitive foods and wellness policies from 7 CFR 210.11 and 210.30.

[A]C. The provisions of this rule shall become effective no later than [July 2, 2008]August 8, 2014.[ or when existing contracts expire.

B. School districts/charter schools shall provide to the USOE by January 12, 2009 a copy of the school district's/charter school's policy required under R277-719-4A.

C. The Board shall review the information received by charter schools/school districts no later than 60 days after the receipt of information and make available a report of findings and conclusions.]

D. The superintendent or principal of the LEA or school shall designate an individual who shall provide documentation during audits to show compliance with this rule.

 

KEY: schools, foods, nutrition, vending machines

Date of Enactment or Last Substantive Amendment: [February 7, 2008]2014

Notice of Continuation: March 12, 2013

Authorizing, and Implemented or Interpreted Law: Art X Sec 3; 53A-1-401(3); 53A-19-201(1); 53A-1-402(1)(e)

 

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