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Seeking Counsel: Safe and Healthy Environments

Federal laws attempt to address student health issues

Michael J. Julka & M. Tess O’Brien-Heinzen

Childhood obesity and food allergies are on the rise. Over the past decade, medical experts have given increased attention to what kids are eating in school, and for good reason. Calories from sugars and fats contribute to 40 percent of daily calories for children age 2 to 18 years old. The Centers for Disease Control and Prevention (CDC) states that childhood obesity has more than tripled since the 1970s, and puts children at a higher risk for chronic health conditions, depression, and social isolation.

In addition, the number of children with food allergies continues to grow. The CDC estimates that 4 percent to 6 percent of children in the U.S. are now affected by food allergies, and the consequences can be life-threatening. Since there is no cure, strict avoidance is the only way to prevent a reaction at school. 

During the Obama administration, the U.S. Department of Agriculture (USDA) introduced several health and wellness initiatives as a means of assisting school districts with their obligation to address these issues. A few of the more notable ones are discussed below and require school districts to pay attention to what they are feeding students and to ensure that students can eat what they are being served. 

While these efforts seemed a priority for the past administration, school districts may see a different approach under the Trump administration. The USDA’s Secretary, Sonny Perdue, remains committed to restoring local control over issues and has begun the regulatory process of providing school districts with greater options with respect to food. What this means for the programs discussed herein (and other health and wellness efforts), remains uncertain.

Healthy, Hunger-Free Kids Act 

In 2010, former First Lady Michelle Obama championed the Healthy, Hunger-Free Kids Act, which was an initiative to overhaul the nation’s school lunch menus. In the last five years, school districts were required to reduce the calories, fat, and sodium in their menu offerings and increase whole grains, fruits, vegetables, and nonfat milk offerings to students. The nutrition regulations affected nearly 32 million students who received federally subsidized school meals. 

In May 2017, the USDA rolled back some of these requirements. At the beginning of this school year, school districts could request an exemption from the whole grain requirement if they were having difficulty meeting the standards. Even with the changes, however, at least half of the grains offered in schools must be whole grains. The USDA also announced that the sodium restrictions would be postponed. Likewise, milk requirements loosened, allowing districts again to serve 1 percent flavored milk instead of fat-free flavored milk. According to Perdue, the changes were made to assist school districts in developing menus that are healthy and appealing to students.

Smart Snacks

In 2016, the USDA implemented final rules regarding Smart Snacks Standards for all food and beverages sold to students during the school day beyond those provided in the school lunch and breakfast programs. These may include à la carte items sold in the cafeteria and foods sold in school stores, snack bars, and vending machines. 

The standards also apply to food and beverages sold during fundraisers unless they are not intended for consumption at school or are exempted by state law. A “school day” is defined broadly as the midnight before to 30 minutes after the end of the school day. 

To qualify as a Smart Snack, a snack or entrée must meet general nutrition standards: be a grain product that contains 50 percent or more whole grains by weight; have as the first ingredient a fruit, vegetable, dairy product or protein food; or be a combination food that contains at least a quarter cup of fruit and/or vegetable. 

The snack or entrée also must meet nutrient standards for calories, sodium, sugar, and fats. The standards do not apply to fundraising activities that occur during nonschool hours, on weekends or at off-campus events, or that sell foods intended to be consumed outside the school day.

Implementing these standards has been challenging for districts, as the stricter standards can increase costs and reduce revenue by driving students off campus in search of fast food fare. Districts are trying to address this by expanding choices, making quick and healthy snacks easy to access without cash, and pricing healthy choices at lower costs. It remains to be seen whether these efforts will be successful or whether the USDA will relax the standards.

Food allergies 

Under the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act, school districts have an obligation to accommodate students with food allergies that substantially limit a major life activity. This requires districts to ensure that eligible students with food allergies have access to a school district’s meal programs in a manner that is equal to and as effective as that of their peers. In September 2016, the USDA explained this obligation as it relates to the school meal program in Policy Memorandum SP 59-2016.

The USDA’s memo explains that districts must make modifications to school meal programs when an eligible student makes a request supported by a written statement from a state licensed healthcare professional, explaining how the food allergy restricts the student’s diet, identifying the foods to be omitted, and recommending alternatives. After receiving appropriate medical documentation, districts are required to provide appropriate substitutions, although they are not required to honor specific requests, such as requests for a certain brand of food. Finally, districts must provide meals to eligible students in the most integrated setting appropriate and must not exclude students from their peers in doing so.

While the USDA memo outlines greater obligations for school districts with respect to students with food allergies, it seems unlikely that the agency will relax the obligations addressed therein as they align with the general requirements under the ADA and Section 504, both of which require accommodations for eligible students across school district settings. In the context of food allergies, these obligations may already require districts to provide numerous accommodations including food allergy-free classrooms and lunch tables, special protocols for field trips and school celebrations, and strict cleaning protocols. 

Safe environments

Over the past few years, school districts have focused on the health and wellness of students as they have worked to meet federal standards that require healthy meals and snacks, as well as accommodations in meal programs for students with food allergies. 

While the new administration may ease strict federal regulations and restore more local control, districts might consider continuing these initiatives as they are in a unique position to make real progress in educating students on health and wellness, helping students make healthy meal and snack choices, and ensuring a safe environment for students in the lunchroom and across school settings.


Michael J. Julka (mjulka@boardmanclark.com) and M. Tess O’Brien-Heinzen (tobrien@boardmanclark.com) are attorneys with Boardman and Clark in Madison, Wisconsin Law clerk Brenna McLaughlin contributed to this article. 

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